Karnataka High Court
Lagamanna Gangappa Salagere vs Laxman And Others on 5 September, 2000
Equivalent citations: 2001(1)ALT(CRI)364, ILR2000KAR4015, 2001(1)KARLJ189
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
ORDER
1.This revision petition is filed against the order passed by the learned Additional Sessions Judge, Belgaum, in Criminal Revision No. 221 of 1997, dated 29-1-2000 allowing the revision filed by respondents 1 and 2 and setting aside the order passed by the learned Judicial Magistrate of the First Class, Raibag in Summary Case No. 31 of 1995, dated 21-2-1997.
2. The revision petitioner filed a private complaint against the respondents for offences under Sections 147, 148, 504 and 506 read with Section 149 of the I.P.C. in the Court of Judicial Magistrate of the First Class, Raibag. The learned Magistrate referred the said complaint for investigation under Section 156(3) of the Criminal Procedure Code to the jurisdictional P.S.I. by his order dated 9-8-1994. After completing the investigation, 'B' report was submitted by the police to the Court in the year 1996. The learned Magistrate accepted the 'B' report on 27-3-1996. On coming to know about the acceptance of the 'B' report, the revision petitioner/complainant sent a registered letter dated 20-2-1997 to the Court of Judicial Magistrate of the First Class, Raibag seeking for permission to prosecute the complainant. The learned Magistrate, after considering the matter directed notice to the complainant to appear before the Court and to make his submissions, if any. The said order passed by the learned Magistrate has been challenged by respondents 1 and 2 in Criminal Revision No. 221 of 1997 before the learned Sessions Judge, Belgaum. The learned Sessions Judge, by the impugned order passed held that the learned Magistrate has no jurisdiction to recall the earlier order passed by him and to reopen the matter since the said Court has no inherent power to take any such steps. The learned Sessions Judge, therefore, allowed the said revision petition and set aside the order of the learned Magistrate directing issue of notice on 21-2-1997 to the complainant and has also quashed all further proceedings in the case. The legality of the said order has been challenged now by the complainant in the present proceedings.
3. I have heard the arguments advanced by the learned Counsel appearing on both sides.
4. The learned Counsel for the revision petitioner submitted that the revision petitioner/complainant has not been served with the notice of the 'B' report, submitted by the police, to the learned Magistrate after completing the investigation on the complaint filed by him which was referred to the police and it is for this reason, the learned Magistrate after the complainant brought the said fact to the notice of the Court by addressing a letter by registered post, thought it fit to hear the complaint and ordered for issue of notice to Mm and that respondents 1 and 2 have no locus standi to challenge the said order before the learned Sessions Judge and the learned Sessions Judge ought to have dismissed the revision petition filed on the said ground itself. It is further contended by him that the earlier order passed by the learned Magistrate accepting the 'B' report filed, does not amount to an order of discharge or acquittal of the accused as is clarified by the Division Bench of this Court in an earlier decision of this Court in J. Alexander v State of Karnataka by the Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore, wherein it was held that.--
"... At the stage of acceptance of 'B' report, all that happens is that the Court accepts the 'B' report on the basis of the material as available then. Even if further fresh material is discovered which calls for further investigation and if such investigation is not allowed then such course would be stultification of law and logic resulting in miscarriage of justice. It is difficult to assume that all facts could be revealed in one stroke. An order accepting the 'B' report is not an immunity granted to an accused person, but merely a temporary relief subject to further investigation in the event good and fresh material is secured and investigation done. . . .The order made by the Magistrate though judicial, is only to tentative character because even if there be adjudication of the matter, the order made by the Magistrate accepting a 'B' report could not become final because if certain events or circumstances take place such as a complaint being filed under Section 200 and cognizance taken, further investigation can be directed, at any rate. In such circumstances that notice need not be given does not admit of any doubt. Therefore, at the stage when the police want to investigate the matter further in terms of Section 173(8) of the Code, without reference to the Court, question of issue of notice to the petitioner would not arise. Thus if merely an intimation is made to the Court and further investigation is done, how notice and hearing on the matter are required baffles us. At the stage of investigation the principles of audi alteram partem do not apply".
He also relied upon another earlier decision of this Court in Krishna Rao v State of Mysore, wherein it was held that:
"There is no provision in the Code prohibiting a Magistrate from taking cognizance of a charge-sheet and proceeding with the trial of the case, even though the 'B' report submitted by the police has been accepted by him".
This decision has been followed in the above decision in J. Alexander's case, supra. Placing reliance on the above decision, the learned Counsel for the revision petitioner submits that the learned Magistrate is not prohibited by any provision in Cr. P.C. from issuing notice to the complainant to hear his grievance regarding 'B' report submitted, though the same has been accepted by him, when the complainant alleged that he was not served with the notice. It is further contended by him that since the order accepting the 'B' report is only tentative judicial order, the learned Magistrate is entitled to consider whether there are any grounds to order for further investigation in the case by the police or to call upon the complainant to prove his case. In reply to these submissions, the learned Counsel for respondents 1 and 2 vehemently argued that the learned Magistrate having accepted the 'B' report which has been closed on the earlier occasion by accepting the same, has no power to recall that order that too on the basis of a letter sent by registered post by the complainant nearly after one year when the Court has no inherent power to take any such steps. It is further submitted by him that without there being an application duly submitted by the complainant, the learned Magistrate ought not to have passed an order directing issue of notice to the complainant. It is further submitted by him that since the learned Magistrate has closed the case after accepting the 'B' report earlier, the said order amounts to discharge of the accused. He further submitted that the above rulings of this Court are not applicable to the facts of the present case. He finally contended that the learned Sessions Judge was justified in setting aside the order passed by the learned Magistrate on the above grounds and this Court is not entitled to interfere with the impugned order passed by the learned Sessions Judge.
5. It is clear from the above ruling of this Court that the acceptance of 'B' report is only a tentative judicial order and the learned Magistrate has got always power to order for further investigation in the case even after the acceptance of the 'B' report submitted by the police. On the same analogy, it must be held that the learned Magistrate is also entitled to hear the complainant even after the acceptance of 'B' report and decide whether there are any grounds to order for further investigation in the matter or to call upon the complainant to adduce his evidence in support of the allegations made in the complaint and to show how the report submitted by the police is incorrect. In the instant case, the learned Magistrate has decided to hear the complainant when it was brought to his notice by the letter sent by registered post by the complainant that he has not been served with the notice of the 'B' report submitted by the police. The learned Magistrate has ordered for issue of notice and to submit what he wants to say. It is significant to note that the learned Magistrate has not passed any order recalling his earlier order passed by him accepting the 'B' report. Now, at this stage, it cannot be said that respondents 1 and 2 are in any way aggrieved by the said action taken by the learned Magistrate. In my view, the respondents 1 and 2 have no locus standi to challenge the notice issued by the learned Magistrate at this stage particularly when cognizance of the offences has not been taken and the order accepting the 'B' report has not been recalled and no process has been issued to the accused. Though there is some merit in the contention of the learned Counsel for the respondents 1 and 2 that the learned Magistrate has no inherent powers to act upon the letter sent by registered post by the complainant, I am unable to hold that the action taken by the learned Magistrate is illegal as the learned Magistrate can suo motu call for further report from the police. The said discretionary power exercised by the learned Magistrate, in my view, cannot be interfered with at this stage. Further, the contention of the learned Counsel for the respondents that the above said action taken by the learned Magistrate amounts to recalling the order passed accepting the 'B' report, is without any merit since no such order has been passed by the learned Magistrate recalling the earlier order passed by him accepting the 'B' report. In my view, the above order of the learned Magistrate is in the nature of an interlocutory order referred in Section 397(2) of the Cr. P.C. Since only notice has been issued to the complainant to appear before Court to say whatever he would like to say and no revision lies against such an order in view of the bar under Section 397(2) of the Cr. P.C. The learned Sessions Judge, therefore, ought to have rejected the revision petition filed by respondents 1 and 2, as not maintainable on the ground that respondents 1 and 2 have no locus standi to challenge the order passed by the learned Magistrate at this stage.
6. For the above reasons, I find that the impugned order passed by the learned Sessions Judge is liable to be set aside.
7. This criminal revision petition is, therefore, allowed setting aside the impugned order passed. Since the revision petition is allowed on the ground that respondents 1 and 2 have no locus standi at this stage to challenge the order passed by the learned Magistrate and that no revision lies against the order passed by the learned Magistrate which is an interlocutory order, all the contentions raised in this revision petition by the learned Counsel for respondents 1 and 2 are left open and respondents 1 and 2 are entitled to raise the same at a later stage, if summons were to be issued to them by the learned Magistrate on taking cognizance of the offence.