Karnataka High Court
Ahmed Khan vs Norulla Sab on 5 August, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05th DAY OF AUGUST 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.9940 OF 2017
BETWEEN:
1. AHMED KHAN
AGED ABOUT 56 YEARS
S/O CHIGARI HUSSAIN SAB,
NEAR BOTTLE BLDG, DODDABEEDHI,
HARIHARA TOWN,
DAVANAGERE DISTRICT-577601
2. ABHU SALEHA @ SYED ZIKRIYA
AGED ABOUT 54 YEARS
S/O CHAMAN SAB
KODIYALA HOSAPETE,
RANIBENNUR TALUK,
HAVERI DISTRICT-577601
3. SHABUDDIN @ SHABU
AGED ABOUT 56 YEARS
S/O AHMMED KHAN
4. JAVEED BEIG
AGED ABOUT 37 YEARS
S/O GHOUSE BEIG
5. RIZVAN BEIG @ RIJJU
AGED ABOUT 34 YEARS
S/O GHOUSE BEIG
2
6. AKBAR KHAN
AGED ABOUT 57 YEARS
S/O SARDAR KHAN
7. JAVEED
AGED ABOUT 37 YEARS
S/O AKBAR KHAN
8. SALLU @ SALMAN
AGED ABOUT 26 YEARS
S/O AKBAR KHAN
SL. NO. 3 TO 8 ARE RESIDENTS OF
NADABANDH SHA VALI MACCAN,
OLD PB ROAD, HARIHARA TOWN,
DAVANAGERE DISTRICT-577601
... PETITIONERS
(BY SRI: M VINAYA KEERTHY, ADVOCATE)
AND
1. NORULLA SAB
AGED ABOUT 54 YEARS
S/O DADULLA SAB,
NADABANDH SHA VALI MACCAN
OLD PB ROAD, HARIHARA TOWN,
DAVANAGERE DISTRICT-577601
2. HARIHARA TOWN POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE-560001
... RESPONDENTS
(BY SRI: V B SIDDARAMAIAH, ADVOCATE FOR R1-ABSENT
SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R2)
3
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 06.09.2017 IN
C.C.NO.1142/2017 PASSED BY THE PRINCIPAL CIVIL JUDGE
AND J.M.F.C., HARIHARA TAKING COGNIZANCE OF ALLEGED
OFFENCES PUNISHABLE UNDER SECTIONS 323, 324, 448, 307,
114 AND 506 R/W 149 OF IPC AND QUASH THE PROCEEDINGS
IN C.C.NO.1142/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE
AND J.M.F.C., HARIHARA.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Heard learned counsel for petitioners and learned Addl. SPP for respondent No.1.
Counsel for respondent No.2 is absent. Perused the records.
2. Though the petitioners have urged contentions on merit based on large number of documents, yet on going through the impugned order dated 06.10.2017, I find that the learned magistrate has issued summons to the petitioners without setting aside the 'B' summary report submitted by the police. There is nothing in the impugned order to indicate that the learned Magistrate has considered the material collected by 4 the investigating agency, instead summons have been issued solely on the basis of sworn statement of the complainant. This procedure is contrary to the law laid down by the Hon'ble Supreme Court in 'KAMALAPATI TRIVEDI v. STATE OF WEST BENGAL' reported in [1980] SCC [2] 91 which is followed by this Court in 'DR. RAVI KUMAR v. MRS. K.M.C. VASANTHA AND ANOTHER' reported in ILR 2018 KAR 1725 which has laid down the procedure to be followed in the matter of accepting or rejecting the 'B' summary report and it is held as under:-
"5. xxxxxxxxxxxxxxxx It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) "The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such 5 exercise has to be done. This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C."6
Since the learned Magistrate has failed to apply his judicious mind to the 'B' summary report filed by the police and has accepted the same without consideration of the material produced before the Court, without entering into any further discussion on the contentions urged by learned counsel for the petitioners, in my view, solely on this ground, the petition deserves to be allowed.
4. Accordingly petition is allowed. Order dated 06.10.2017 passed by learned Addl. City Civil and JMFC, Harihar is quashed. Case is remitted to the learned Magistrate to reconsider the 'B' summary report afresh in the light of the guidelines issued in the above decision.
All other factual and legal contentions are left open for consideration at the appropriate stage.
Sd/-
JUDGE *mn/-