Karnataka High Court
P B Ibrahim S/O. Shekaba vs Abdul Rahima Aadam Shekh on 17 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO.11720/2013
BETWEEN:
P B IBRAHIM S/O. SHEKABA
AGE: 57 YEARS,
R/AT: BANDAR ROAD,
BHATKAL.
... PETITIONER
(BY SRI.S.S.NAGANANDA, SR.COUNSEL FOR
SRI. K L PATIL, ADV.)
AND
ABDUL RAHIMA AADAM SHEKH
S/O. AADAM SHEKH
AGE: 50 YEARS
R/AT: HEBALE VILLAGE
DIST: BHATKAL.
... RESPONDENT
(BY SRI.: JAGADISH PATIL, ADV.)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO CALL FOR RECORDS IN
C.C.NO.739/2013 FROM THE PRL. CIVIL JUDG & JMFC
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COURT, BHATKAL, AND SET ASIDE THE ORDER DATED
17.10.2013 PASSED AND QUASH THE SAID PROCEEDINGS
(INSOFAR AS PETITIONERS ARE CONCERNED).
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.S.S.Naganand, learned Senior counsel for the petitioner as well as Sri. Jagadish Patil, learned Counsel for the respondent.
2. The factual matrix and the case are that, the respondent-Abdul Rahima Aadam Shekh has lodged a first information report before the Sub Inspector of Police, Bhatkal, making allegations that the accused Nos.1 and 2 colluded with each other in order to destroy and remove the petty shop put by the respondent at Madina colony, Jamiyabad road, in a vacant place. It is alleged that on 9/1/2012 in the night hours, the accused No.2 actually removed the said petty shop and put a road roller in the said place. When the respondent questioned this act of accused No.2, he threatened the complainant with dire consequence of killing him. The police after due investigation submitted a 3 'B' final report before the jurisdictional Magistrate. This was contested by means of filing a protest petition by the complainant. The learned Magistrate took cognizance on the basis of the protest petition, proceeded to record the sworn statement of the complainant and thereafter, appears to has issued summons to this accused to appear before him. The petitioner is arrayed as accused No.1-P.B.Ibrahim, accused No.2 is Mr.Ashraf Abdul.
3. The learned senior Counsel contends that even translating the first information report into evidence, there is absolutely no allegations against the accused No.1. With regard to any instigation or collusion with accused No.2. Only one sentence is stated that the accused No.2 has done the above act with the support of accused No.1. What is the nature of that support, how accused No.1 participated, nothing has been elicited in the said first information report. It is further contended that even in the protest petition, filed to contest the B final report, there are absolutely no allegations of whatsover against accused Nos.1 and 2 in 4 order to take cognizance and to proceed to record the sworn statement of the complainant. Therefore, the accused No.1 requests this Court to quash the entire proceedings in CC No.739/13, on the file of the Prl. Civil Judge and JMFC, Bhatkal.
4. The learned Magistrate in fact as per his order dated 17/10/2013 rejected the 'B' final report filed by the police and taken cognizance against the accused persons for the offence punishable under Section 506 r/w 34 of Indian Penal Code, 1860 and issued process against the accused persons. The said order is challenged before this Court.
5. The order sheet of the trial Court also discloses that on 12/9/2012, the complainant remained absent, and, 'B' report was accepted by the learned Magistrate. Once 'B' report was accepted the Magistrate cannot go behind and reject the said 'B' report once again. Moreover, the Magistrate has not taken cognizance on the basis of the report submitted by the police. But, the records clearly shows that on the basis of the protest petition filed by the 5 complainant, the Magistrate has taken cognizance and proceeded to record the sworn statement and thereafter, issued summons. Though it is narrated by the learned Magistrate that 'B' report was rejected, but, virtually his conduct in recording the sworn statement, shows he accepted the 'B' report otherwise there was no necessity to record the sworn statement of the complaint.
6. Once the 'B' final report is submitted by the police, there are two options open to the Magistrate, one is on the basis of the of the 'B' final report, perusal of the entire report, if the Magistrate is of the opinion, the allegations made against the accused persons have been substantiated by the materials on record, the Magistrate can still take cognizance on the report submitted by the police and proceed as if, on the basis of the police report cognizance was taken. Secondly, if the Magistrate does not take cognizance, on the basis of the police report, then an opportunity should be given to the complainant to file protest petition challenging the said 'B' final report. It should be borne in mind in that 6 extent, the protest petition should be in the nature of a complaint under Section 2(d) of Cr.P.C., it should contain the allegation made against the accused persons and that, such allegations should definitely constitute any offence against the accused persons, so that the Magistrate can take cognizance of the offence made out in the complaint and thereafter, under Section 200 of Cr.P.C. he can proceed to record the sworn statement of the complainant. Thereafter, under Section 203 of Cr.P.C., the Magistrate has to consider the contents of the sworn statement and the protest petition to find out whether any case is made out against the accused person to issue summons under Section 204 of Cr.P.C. If the Magistrate is of the opinion that no case is made out prima facie on going through the protest petition and the sworn statement, then he has to pass an order under Section 203 of the Cr.P.C., dismissing the complaint. Here, in this case, the Magistrate ought not to have taken cognizance as per Section 200 of Cr.P.C., because of the simple reason the protest petition filed by the petitioner, does not disclose any offence 7 against any of the accused person much less accused No.1 herein. It is for the purpose of convenience and easy understanding, what exactly the protest petition filed by the petitioner disclose, it is just and necessary to go through the same.
7. The protest petition discloses that the whole allegations made against the police that the 'B' report submitted by the police was not correct and complainant would not accept the said 'B' report. The police at the time of submitting the report have narrated that they have examined witnesses and also drew up the Mahazar on the spot. Though there are sufficient materials in the statement of the witnesses and also the Mahazar drawn by the police a false 'B' report submitted to the Court. Therefore, the petitioner requests the Court to proceed against the accused persons on the basis of the protest petition.
8. Though it is stated in the first paragraph that the contents of the first information report shall be read as a part and parcel of the complaint. But, the protest petition must 8 be in the nature of the complaint. The information given in the first information report, cannot be read into the protest petition filed by him. It is not a technical error, but, is substantial error committed by the petitioner in not filing the protest petition in the nature of a private complaint so as to enable the Magistrate to pass appropriate orders. Once the 'B' report is accepted the Magistrate is debarred from looking into the contents of the first information report as well as any statement of the witnesses or the Mahahzar submitted by the police. The only contents of the protest petition has to be looked into by the Magistrate if the contents of protest petition disclose any offence against accused persons, then only the Magistrate has to take cognizance and proceed against the accused persons. In this particular case, such allegations, constituting any offence is conspicuously missing in the protest petition. Therefore, the learned Magistrate ought not to have taken any cognizance so far this accused No.1 is concerned.
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9. Under the above said circumstances, I am of the opinion the cognizance taken by the learned Magistrate and issuing process against accused No.1 is wholly illegal and it is not in accordance with the procedure as contemplated under the criminal procedure code. Therefore, the order of the learned Magistrate so far it pertains to accused No.1 requires to be quashed.
10. Accordingly, the petition is allowed. Proceeding in CC No.739/2013 on the file of JMFC, Bhatkal is hereby quashed against accusedNo.2 (Petitioner).
Sd/-
JUDGE Vmb