Karnataka High Court
Fazlu Rehman vs State Of Karnataka on 23 August, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.3363 OF 2014
BETWEEN:
1. FAZLU REHMAN
S/O KHALANDAR,
AGED ABOUT 74 YEARS,
2. ATHAULLA
S/O FAZALUREHMAN,
AGED ABOUT 48 YEARS,
3. AFROZ
S/O FAZALUREHMAN,
AGED ABOUT 35 YEARS,
4. SADIQ
S/O FAZALUREHMAN,
AGED ABOUT 20 YEARS,
5. KHALANDAR
S/O FAZALUREHMAN,
AGED ABOUT 28 YEARS,
6. SANAHULLA
S/O ABDUL KHURUS,
AGED ABOUT 28 YEARS,
7. SAGEERMUNNA
S/O ABDUL KHURUS,
2
AGED ABOUT 20 YEARS,
8. JAVID
S/O ABDUL KHURUS,
AGED ABOUT 30 YEARS,
ALL ARE AGRICULTURISTS,
ALL ARE RESIDING AT KUDLI VILLAGE,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT-570 201.
... PETITIONERS
(BY SRI: S G RAJENDRA REDDY, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPTD. BY HOLEHONNUR POLICE,
HOLEHONNUR, SHIVAMOGGA DISTRICT,
NOW REPTD. BY S.P.P.
HIGH COURT BUILDING,
BANGALORE-560001.
2. SYED RAHAMATHULLA
S/O SYED AMEER,
AGED ABOUT 45 YEARS,
AGRICULTURIST,
KUDLI VILLAGE, BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT-570 201
... RESPONDENTS
(BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1;
SRI: VARADARAJ R.HAVALDR, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
ENTIRE PROCEEDINGS IN S.C.NO.44/2013 PENDING BEFORE THE
P.O., F.T.C., BHADRAVATHI.
THIS CRL.P COMING ON FOR FINAL HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:-
3
ORDER
Petitioners have sought to quash the proceedings in S.C.No.44/2013 for the alleged offences punishable under sections 143, 144, 147,148, 447, 504, 323, 506, 307 read with 149 of IPC.
Heard learned counsel for petitioners, learned counsel for respondent No.2 and learned Addl. SPP for respondent No.1. Perused the records.
2. Learned counsel for petitioners has urged two fold contentions.
(i) First, protest petition submitted by second respondent is not in the form of a complaint. The said petition does not make out any allegations constituting criminal offences and under the said circumstances, learned Magistrate has committed an error in taking cognizance of the above offences and issuing summons to the petitioners.
(ii) Second, order of committal passed by learned Magistrate does not reflect application of mind. The contents of 4 the said order go to show that, learned Magistrate has referred to the charge sheet and the prosecution papers, whereas, no charge sheet was filed in the matter, indicating thereby, learned Magistrate has passed the said committal order mechanically, without application of mind and on account of these errors, the proceedings are vitiated and are liable to be quashed.
(iii) In support of his submissions, learned counsel for petitioners has placed reliance on the decision of this Court in BASAPPA vs. STATE OF KARNATAKA wherein it is held that if the protest memo is not in the form of a complaint and there are no allegations in the protest memo constituting any offence and no request is made to take action, learned Magistrate gets no jurisdiction to take cognizance of the alleged offences.
3. Disputing the above contentions, learned counsel for respondent No.2 has placed reliance on the decision of the Hon'ble Supreme Court in H.S.BAINS vs. THE STATE (UNION TERRITORY OF CHANDIGARH), AIR 1980 SC 1883 and M/s. INDIA CARAT PVT. LTD., vs. STATE OF KARNATAKA & Another, AIR 1989 SC 885 and would submit that learned Magistrate has 5 taken cognizance of the alleged offence based on the material allegations made in the sworn statement of the complainant which clearly make out the ingredients of above offences; hence, there is no reason to interfere with the impugned order.
4. Learned Addl. SPP has argued in line with the submission made by respondent No.2 and sought for dismissal of the petition.
5. Undisputedly, based on the complaint lodged by the second respondent, FIR was registered in Crime No.47/2011. After investigation, the police submitted a 'B' summary report. Complainant/Respondent No.2 filed a protest petition. Considering the said protest petition, learned Magistrate proceeded to record the sworn statement of the complainant and his witnesses and by order dated 9.3.2012, issued summons to the petitioners. Order sheet maintained by the Trial Court does not disclose that learned Magistrate has passed any orders on the 'B' summary report submitted by the police. 6
6. The procedure followed by the learned Magistrate 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 wherein 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 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.7
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."
7. Further, the committal order passed by the learned Magistrate also does not reflect that the learned Magistrate has applied his mind to the facts of the case. Even though no charge sheet was filed before the court, learned Magistrate has 8 proceeded as if he has perused the charge sheet and prosecution papers which is contrary to the true facts.
In view of these defects and illegalities, proceedings conducted the Trial Court having been vitiated, petition is allowed. Order dated 09.03.2012 issuing summons to petitioners/accused Nos.1 to 8 and the consequent order of committal dated 29.10.2012 are quashed. The matter is remitted to the learned Magistrate to consider 'B' summary report afresh and proceed in the matter in the light of the guidelines laid down in the above said decisions.
Sd/-
JUDGE Bss