Karnataka High Court
Chandrashekar vs State Of Karnataka on 23 November, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO. 5500/2017
BETWEEN
1. CHANDRASHEKAR,
S/O NAGAPPA,
AGED ABOUT 76 YEARS,
OCC: RETIRED SUPERINTENDING
ENGINEERING, PUBLIC WORKS
DEPARTMENT, R/AT NO.21,
MUDDANNAPALYA,
VISHWANEEDAM POST,
BENGALURU - 560 091.
2. G. P. MALLIKARJUNAIAH,
S/O LATE PARVATHAIAH,
AGED ABOUT 52 YEARS,
OCC: CIVIL CONTRACTOR,
R/AT NO.611, 6TH MAIN,
KCHS LAYOUT, NAGADEVANAHALLI,
BHUVANESHWARINAGAR,
GNANABHARATHI,
BENGALURU - 560 056.
... PETITIONERS
(BY SRI. HASHMATH PASHA, ADV.)
AND
1. STATE OF KARNATAKA,
BY TAVARAKERE POLICE,
BENGALURU RURAL - 577 228
(REP. BY LEARNED STATE PUBLIC
PROSECUTOR),
2
2. PRAVEEN ARAVALLI,
S/O S. G. ARVALLI,
AGED ABOUT 31 YEARS,
R/AT NO.24, II STAGE,
MAHALAKSHMIPURA,
BENGALURU - 560 086 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R-1
SRI. B. VIJAY SHETTY, ADV. FOR R-2)
THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN CRIME
NO.382/2014 OF TAVAREKERE POLICE STATION,
BENGALURU SOUTH TALUK WHICH IS PENDING ON THE
FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU FOR THE
OFFENCE P/U/S. 3(1)(10) OF SC AND THE ST (POA) ACT,
1989 AND ALSO UNDER SECTIONS 504, 506, 323 OF IPC.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondent. Perused the records.
2. Respondent No.2 herein has lodged FIR before the Respondent No.1-Tavarekere Police making allegations that, on 30.05.2014 at 6.30 p.m., the accused persons gathered themselves near the house of the complainant and abused in filthy language regarding his caste and also committed other offences. Therefore, on the basis of the said allegations, the 1st respondent -police registered a 3 case in Crime No. 382/2014 under Sections 3(1)(x) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities ) Act, 1989 ( for short,' SC and ST (POA) Act'). The Deputy Superintendent of Police, who is the authorized person has thoroughly investigated the matter and submitted 'B' Summary Report in Crime No.382/2014 before the II Additional District and Sessions Judge, Bengaluru, Rural District, Bengaluru. Thereafter, it appears the Court has issued notice to the complainant and therefore, he appears to have filed a protest petition and also the court recorded the sworn statement of the complainant and registered a criminal case.
3. Learned counsel for the petitioners strenuously contends before this Court that, the protest memo filed by the petition should be in the nature of a private complaint as per Section 2(d) of Cr.P.C. and in support of the same, sworn statement can be recorded. Here, no cognizance has been taken by the jurisdictional court on the Protest Memo nor the Court has passed any order with regard to the contents of the Protest Memo. Therefore, the learned counsel contends that the whole proceedings is vitiated by 4 serious incurable defects. The learned counsel has also drawn my attention to the Protest Memo and stated that the Protest Memo filed by the Respondent does not contain any allegations which constitute any offence/s punishable under the penal laws for the time being in force, so as to take cognizance and proceed for recording sworn statement. In this regard, learned counsel for the petitioners relies upon a decision of this court reported in 2014 SCC Online Kar 937 ( G.H. Shiakh Vs. State of Karnataka) and also an unreported ruling in Criminal Petition 11720/2013 disposed of on 17.03.2014[ P.B. Ibrahim Vs. Abdul Rahima Aadam Shekh].
4. In the above said cases, this court has categorically held that the contents of the Protest Petition should contain the allegations which are sufficient to constitute the offences under any of the penal provisions, otherwise the court gets no jurisdiction to take cognizance and proceed further. This court while discussing in detail on the said point, after considering Sections 200, Section 190 and also Section 2(d) of Cr.P.C., in the case of G.H. Shiakh at Paragraph-10, has categorically observed that,- 5
"10. Except some averment in the objection statement, the complainant has not at all stated about the incident, overt acts of the accused persons and how the complainant has suffered at the hands of accused persons, etc. Therefore, the objections filed to 'B' Summary Report is very bald, which does not contain any allegations against the petitioners, muchless any person, constituting any offence under any of the penal law for the time being in force. When such allegations are not there in the objections of 'B' Summary Report, at no stretch of imagination, it can be construed as a complaint under Section 2(d) of Cr.P.C. so as to enable the Magistrate to take cognizance under Section 190 of Cr.P.C.. xxxxx."
5. Learned counsel for the respondent strenuously contends that, in the Protest Memo the complainant has categorically stated that the complaint lodged by the complainant before the Tavarekere Police shall be read as Part and Parcel of the Protest Memo to avoid repetition of the facts. Learned counsel contends that the contents of the FIR should be read into the Protest Memo so as to consider it as a complaint as per Section 2(d) to Cr.P.C. Such procedure is nowhere contemplated 6 under any law for the time being in force and even under 2(d) Cr.P.C., refers to private complaint says that,-
2(d). "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
7. Therefore, it clear that the Protest Memo cannot be a police report and the FIR filed by Respondent No.2 merges with 'B' Summary Report. The details of allegations shall be made in the Protest Memo so that the Magistrate can look into the same and analyse whether those allegations constitute any offences or not. If no such allegations are there in the protest memo, the Magistrate has no jurisdiction to take cognizance on the Protest Memo and allow the party to give Sworn Statement.
8. In this background, as could be seen from the Protest Memo filed by the 2nd respondent before the trial Court, it does not disclose even a single sentence about any allegations against the accused so as to constitute any offence under Section 3(1)(x) of SC and ST (POA) Act and 7 also under Sections 504 and 323 of IPC. The whole of the 'B' Summary Report is concentrated, only making allegations against the police that, the police have not properly investigated the matter and also stated in one sentence that the contents of the FIR can be read as part and parcel of the Protest Memo. As the party has stated the contents of the FIR cannot be taken into consideration, because it ends up with the 'B' Summary Report and independent allegations has to be made in the Protest Memo which constitute the offence so that the court can take cognizance and proceed against the petitioners. When the basis for sworn statement is not laid in the Protest Memo itself, the sworn statement which is bereft of the contents of the private complaint constituting any offence, cannot be in any manner taken into consideration as private complaint,
9. On perusal the order dated 19.04.2017 passed by the trial Court in recording the sworn statement registering a case against the accused it is noticed that, though it is a detailed order, but there is no mention that the 'B' Summary Report contains any allegations which 8 constitute any offence against the accused. So whatever the documents produced along with the sworn statement as stated is without basis and without any allegations made in the protest petition.
9. In the above said facts and circumstances, I am of the opinion that the proceedings initiated by the learned Magistrate on the basis of the Protest Memo is bad in law and the same is liable to be quashed. Hence, I am of the opinion that the said order deserves to be quashed. Accordingly, I pass the following order:-
ORDER The order dated 19.04.2017 passed by the trial Court viz., II Addl. District and Sessions Judge, Bengaluru, Rural District, Bengaluru, in Crime No.382/2014 of Tavarekere Police Station, taking cognizance and issuing summons to Accused Nos. 1 & 2, is hereby quashed.
Sd/-
JUDGE KGR*