Karnataka High Court
K G Shivamurhty vs Smt Shivagangamma on 1 August, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 01ST DAY OF AUGUST, 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2575 OF 2013
BETWEEN:
1. K.G.Shivamurthy,
Son of Channabasappa,
Aged about 62 years,
Retired Principal,
H.P.S.College,
Harapanahalli - 583 131.
2. Ramanagowda,
Son of Dyamanagowda,
Aged about 62 years,
Advocate,
Resident of Gowli Oni,
Harapanahalli - 583 131.
...PETITIONERS
(By Shri S.G.Rajendra Reddy, Advocate)
AND:
1. Smt. Shivagangamma,
Wife of Cidanandappa,
Aged 66 years,
Resident of Sinagarageri,
2
Harapanahalli - 573 131.
2. State by Harapanahalli Police Station,
Harapanahalli, represented by
State Public Prosecutor,
High Court Building,
Bangalore - 560 001.
...RESPONDENTS
(By Shri T.S.Mahanthesh, Advocate for Respondent No.1;
Shri K.R.Keshav Murthy, State Public Prosecutor-II, for
Respondent No.2)
*****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to quash the order
dated 16.3.2013 in Crime No.33/2004 passed by the Civil Judge
(Jr.Dn.) and JMFC., Harapanahalli, taking cognizance for the
offence punishable under Sections 143, 148, 447, 354 read with
149 of IPC against the petitioners and directing the office to
register the case and to issue summons.
This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
The present petition is sought to be filed on two primary grounds:
Firstly, on a complaint lodged by the respondent, the police had registered a case against the petitioners and nine other accused for offences punishable under various sections of 3 the Indian Penal Code, 1860. The police had then filed a 'B final report, against which the respondent - complainant had sought to file a protest memo. The Magistrate, taking into consideration the same, had proceeded to reject the 'B' report submitted by the police and had ordered to take cognizance of the offences alleged against the accused and to issue summons to the accused. It is this order which is under challenge in this petition.
2. The learned counsel for the petitioners - accused has urged that unless it was in the form of a complaint, the protest memo lodged against the 'B' final report by the police, is not maintainable. In this regard, he has placed reliance on several decisions by a learned Single Judge of this Court, one among them being Crl.P.No.5716/2007 dated 7.3.2012.
3. However, the very learned Single Judge in the said decision has observed that, the question whether such a protest application is not required to be in the form of a complaint within the meaning of Section 2(d) Cr.P.C. and whether it 4 would suffice if it is merely in the form of a protest petition as one filed in the present case and whether it can still be construed as a complaint, has been examined and it is observed that since the complainant was asking the Magistrate to take cognizance, all references in the protest application would be of no avail to the complainant. There ought to be an element of a complaint. It is only then the protest memo could be entertained in such a case. However, it is also observed by the learned Single Judge that in the event of the report having been filed to the Magistrate, it is not necessary that the protest memo should repeat the contents of the complaint.
4. In view of these observations, in the present case on hand, the learned counsel for the petitioners would candidly admit that there is an element of a complaint in the protest application and therefore, it is not a ground on which the petition could be sustained.
It is secondly sought to be canvassed that the allegations in the complaint do not make out any complaint against the 5 present petitioners and there is no reference to any overt acts on the part of the present petitioners and therefore, the Magistrate having issued process, is without application of mind, in the face of such a glaring circumstance.
5. This is again a ground which could be urged by the petitioners at the appropriate time and even there being an adverse order, the petitioners being armed with the remedy of a revision petition, the present petition seeking the invocation of extra-ordinary power of this court under Section 482 Cr.P.C. of this Court, is not warranted.
The petition is disposed of without prejudice to any other remedy that the petitioners may be armed with, including the filing of a revision petition before the court below.
Sd/-
JUDGE KS