Karnataka High Court
Henry D Souza Bishop vs The State Of Karnataka on 9 September, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2025:KHC-D:11579
CRL.P No. 100693 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 9TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 100693 OF 2019
(482(CR.PC)/528(BNSS))
BETWEEN:
HENRY D'SOUZA, BISHOP,
AGE: 69 YEARS,
OCC: BISHOP OF THE CATHOLIC
DIOCESE OF BALLARI,
R/O: BESIDE ST. JOSEPH SCHOOL,
BALLARI.
... PETITIONER
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally
THROUGH CHOWL BAZAR POLICE STATION,
signed by
RAKESH S
RAKESH HARIHAR
Location:
REPRESENTED BY STATE PUBLIC PROSECUTOR,
S HIGH
HARIHAR COURT OF
KARNATAKA
DHARWAD
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
BENCH
DHARWAD.
2. A. FRANSIS S/O J. ARUL DAS,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: JAGANATHA TEMPLE STREET,
RADIO PARK, C.B. BALLARI.
3. SRI. INDRANIL MUKHERJEE
S/O SRI. BHASKAR MUKHERJEE,
AGE. MAJOR, OCC. MANAGING DIRECTOR,
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NC: 2025:KHC-D:11579
CRL.P No. 100693 of 2019
HC-KAR
R/O. #108, BLOCK 7, HERITAGE ESTATE,
DODDABALLAPURA ROAD, YELAHANKA,
BENGALURU-560 004.
4. SRI. INJETI MAHESH S/O I. PEETHAMBARAM,
AGE. MAJOR, OCC. BUSINESS,
R/O. #41/1, OLD MARKET ROAD,
COWL BAZAAR, BALLARI DISTRICT-583 102.
5. SRI. ISMAIL SUHAB S/O SRI. J.M. IBRAHIM,
AGE. MAJOR, OCC. BUSINESS,
R/O. #9, 8TH A CROSS, MUBARAK NAGAR,
J.C. NAGAR, BENGALURU-560 006.
6. SRI. S. PRASAD S/O. SRI. P. SUBRAMANIAM,
AGE. MAJOR, OCC. CHENNAI,
R/O. CHENNAI-600 001.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
SRI. MAHESH WODEYAR, ADVOCATE FOR R2;
NOTICE TO R3 TO R5 ARE DISPENSED WITH)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO ALLOW THE PRESENT APPLICATION
AND SET ASIDE THE ORDER DATED 02.02.2019 PASSED BY THE
I ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI, IN
CRIMINAL REVISION PETITION NO.79/2017 AND
CONSEQUENTLY, ORDER DATED 31.08.2017 PASSED BY II
ADDL. CIVIL JUDGE AND J.M.F.C. COURT, AT: BALLARI, PASSED
ON HEARING BEFORE CHARGE IN P.C.R. NO.184/2011 WHICH IS
NUMBERED AS C.C. NO.295/2014 BE AFFIRMED.
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
ORDER IS MADE THEREIN AS UNDER:
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NC: 2025:KHC-D:11579
CRL.P No. 100693 of 2019
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. Petitioner is before this Court with a prayer to set aside the order dated 02.02.2019 passed by the Court of I Additional District and Sessions Judge, Ballari in Criminal Revision Petition No.79 of 2017, wherein the order dated 31.08.2017 passed by the Court of II Additional Civil Judge and JMFC, Ballari in C.C.No.295 of 2014 arising out of PCR No.184 of 2011 registered for offence punishable under Section 420 of IPC has been set aside and the learned Magistrate was directed to proceed with the case by framing charge against the petitioner for the offence punishable under Section 420 of IPC.
2. Heard learned counsel for the parties.
3. Respondent No.2 herein had filed private complaint before the Jurisdictional Court of Magistrate, Ballari in PCR No.184/2011 and the same was referred under Section 156(3) of Cr.P.C. to the Jurisdictional Police Station for investigation. Thereafter, FIR in Crime No.368 of -4- NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR 2011 was registered by Cowl Bazar Police Station, Ballari for offence punishable under Section 420 of IPC against the petitioner herein. In the said case, after investigation, the police had filed 'B' final Report before the Jurisdictional Court of Magistrate. It appears that respondent No.2 had opposed acceptance of the said 'B' final Report filed in Crime No.368 of 2011. The learned Magistrate therefore had proceeded to record sworn statement of the respondent No.2/complainant and having taken cognizance of the alleged offence, had issued summons to the petitioner.
4. After the petitioner had appeared before the learned Magistrate, the evidence of respondent No.2 was recorded before framing of charge, as provided under Section 244 of Cr.P.C. and thereafter, in exercise of powers under Section 245 of Cr.P.C., order dated 31.08.2017 was passed discharging the petitioner in the case as no prima facie evidence to frame charge was found against him. Aggrieved by the said order dated 31.08.2017 passed in C.C.No.295 of 2014 by the Jurisdictional Court of -5- NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR Magistrate, respondent No.2 had filed Criminal Revision Petition No.79 of 2017 before the Jurisdictional Sessions Court, which was allowed vide the order impugned dated 02.02.2019. It is under these circumstances, the petitioner is before this Court.
5. Perusal of the material on record would go to show that, after holding detailed investigation in the case, the Police had filed 'B' final report in the present case, on the ground that dispute between the parties is civil in nature and the private complaint was filed before the Jurisdictional Court of Magistrate by misconception. 'B' final report filed in the present case was opposed by respondent No.2/complainant by filing a protest petition.
6. Learned Magistrate thereafter had proceeded to record sworn statement of the respondent No.2/ complainant and after taking cognizance of the alleged offence, had issued summons to the petitioner herein. Thereafter, exercising powers under Section 245 of Cr.P.C. -6-
NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR the learned Magistrate vide order dated 21.08.2017, had discharged the petitioner. In the said order, learned Magistrate, having appreciated the material available on record had recorded a finding that allegations made by the complainant are purely civil in nature and no prima facie material was available to register criminal case against the accused.
7. The Co-ordinate bench of this Court in the case of Dr.Ravikumar Vs.Mrs.K.M.C.Vasantha in Crl.P.No.536 of 2017, disposed off on 27.11.2017, has laid down the procedure that a Magistrate is required to follow, after a B final report is filed before him. The same reads as follows:
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 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 -7- NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR between Kamalapati Trivedi and State of West Bengal (second head note.) 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.
v. If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr.p.c. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under section 190 read with 200 Cr.p.c. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to -8- NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr.p.c., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.
vi. After taking such report under section 202 of Cr.P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 of Cr.P.C. as the case may be.
vii. If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s.204 of Cr.P.C."
8. In the case on hand, learned Magistrate has failed to follow the procedure laid down in the case of Dr.Ravikmar (supra) after B final report was filed before him. Learned Magistrate without passing any order on the B final report filed in the present case had proceeded to record the sworn statement of the complainant/respondent No.2 which was not permissible.
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9. The Revisional Court has failed to appreciate this aspect of the matter and, on the other hand, having set aside the order of discharge passed by the learned Magistrate, has directed him to proceed in the case by framing charge against the accused for the offence punishable under Section 420 of IPC. The order passed by the Revisional Court is therefore erroneous. The Revisional Court has failed to appreciate that the procedure followed by the learned Magistrate after filing of B final report in the case was not in accordance with law and therefore having set aside the order dated 31.08.2017, the learned Sessions Judge ought to have directed the learned Magistrate to proceed further in the matter taking into consideration the judgment of this Court in the case of Dr.Ravikumar (supra). Therefore, the order passed by the Revisional Court cannot be sustained.
10. Though submission is made by the learned counsel for the petitioner that since the complaint averments and other material on record would go to show
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NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR that dispute between the parties is purely civil in nature and the entire complaint is required to be quashed, since 'B' final +report is already filed by the police stating that the dispute between the parties is civil in nature and by misconception criminal proceedings is initiated, I am of the view that it is for the Magistrate to appreciate the said aspect of the matter and pass a fresh order in accordance with law taking into consideration the observations made by this Court in the case of Dr.Ravikumar (supra). Accordingly, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The order dated 02.02.2019 passed by the Court of I Additional District and Sessions Judge, Ballari in Criminal Revision Petition No.79 of 2017 is set aside.
Since cognizance of the alleged offence has been taken without following the procedure laid down by this Court in the case of Dr.Ravikumar (supra), the order
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NC: 2025:KHC-D:11579 CRL.P No. 100693 of 2019 HC-KAR dated 29.03.2014 passed in PCR No.184/2014 by the Court of II Addl.Civil Judge and JMFC, Ballari taking cognizance of the alleged offence and all further proceedings thereafter is quashed.
The matter is remitted to the trial Court to pass fresh orders on the B final report filed in the present case following the procedure laid down by this Court in the case of Dr.Ravikumar (supra).
This Court vide order dated 24.02.2022 while granting interim order in this case had directed the petitioner to deposit a sum of ₹50,00,000/- to show his bonafides. The petitioner is permitted to withdraw the said amount.
Sd/-
(S.VISHWAJITH SHETTY) JUDGE KGK, VMB CT:BCK LIST NO.: 1 SL NO.: 9