Karnataka High Court
Late Hasen Sab S/O Late Shek Ummar Sab ... vs The State Of Karnataka on 12 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
-1-
NC: 2025:KHC-D:2865
CRL.RP No. 100345 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100345 OF 2024
[397(CR.PC)/438(BNSS)]
BETWEEN:
LATE HASEN SAB S/O. LATE SHEK UMMAR SAB,
SINCE DECEASED BY HIS LRS.,
1A. SHAIK UMAR SAB S/O. LATE HASEN SAB,
AGE: 55 YEARS, OCC. PRIVATE WORK,
R/O. AZAD NAGAR, 22ND WARD,
TQ. HOSAPETE, DIST. VIJAYANGARA-583201.
1B. MUNNI BEE W/O. GHOUSE,
AGE: 51 YEARS, OCC. HOUSEHOLD,
R/O. AZAD NAGAR, 22ND WARD,
TQ. HOSAPETE, DIST. VIJAYANGARA-583201.
1C. VALI SAB S/O. LATE HASEN SAB,
Digitally signed
AGE: 47 YEARS, OCC. PRIVATE WORK,
R/O. AZAD NAGAR, 22ND WARD,
by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA KALMATH
KALMATH
Date:
2025.02.13
14:37:49 +0530 TQ. HOSAPETE, DIST. VIJAYANGARA-583201.
1D. MD. GHOUSE S/O. LATE HASEN SAB,
AGE: 45 YEARS, OCC. PRIVATE WORK,
R/O. AZAD NAGAR, 22ND WARD,
TQ. HOSAPETE, DIST. VIJAYANGARA-583201.
1E. SALIMA W/O. LATE SHAIK SALIM,
AGE: 55 YEARS, OCC. PRIVATE WORK,
R/O. AZAD NAGAR, 22ND WARD,
TQ. HOSAPETE, DIST. VIJAYANGARA-583201.
... PETITIONERS
(BY SRI SABEEL AHMED, ADVOCATE)
-2-
NC: 2025:KHC-D:2865
CRL.RP No. 100345 of 2024
AND:
1. THE STATE OF KARNATAKA
R/BY. HOSPET TOWN POLICE STATION,
TQ. HOSAPETE-583201,
NOW R/BY. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
DHARWAD-580008.
2. NABISAB S/O. K.ABDULSAB,
AGE: 57 YEARS, OCC. PRIVATE WORK
R/O. 2ND WARD, MARIYAMMANAHALLI VILLAGE,
TQ. HOSAPETE, DIST.VIJYANAGARA-583222.
3. ALLABAKSHI B. S/O. BANDI PEERASAB NEDAGURTI,
AGE: 47 YEARS, OCC. PRIVATE WORK,
R/O. NEDAGURTI VILLAGE,
TQ. SANDUR, DIST. VIJAYANGARA-583124.
4. H.NAJIR BASHA S/O. H.HUSEN SAHEB,
AGE: 49 YEARS, OCC. PRIVATE WORK,
R/O. MARIYAMMANAHALLI VILLAGE,
TQ. HOSAPETE, DIST. VIJAYANGARA-583222.
5. P.KHASIMSAB S/O. YAMAN SAB,
AGE: 49 YEARS, OCC. PRIVATE WORK,
R/O. MARIYAMMANAHALLI VILLAGE,
TQ. HOSAPETE, DIST. VIJAYANGARA-583222.
... RESPONDENTS
(BY SRI JAIRAM SIDDI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. (SECTION 438
READ WITH SECTION 442 OF B.N.S.S.), SEEKING TO SET ASIDE
IMPUGNED DATED 10.08.2023 PASSED ON PROTEST MEMO FILED BY
THE PETITIONERS AND ALSO PLEASED TO REJECT THE 'B' REPORT
SUBMITTED BY RESPONDENT NO.1 AND CONSEQUENTLY DIRECT
PRINCIPAL CIVIL JUDGE AND J.M.F.C AT HOSAPETE TO TAKE
COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTION 506,
120B, 405, 406, 467, 468, 471, 420 READ WITH 34 OF I.P.C
AGAINST THE ACCUSED NO.1 TO 4/RESPONDENTS NO.2 TO 5
HEREIN IN P.C.R. NO.294/2019.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-3-
NC: 2025:KHC-D:2865
CRL.RP No. 100345 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging order dated 10.08.2023 passed by Principal Civil Judge and JMFC., Hosapete in PCR.no.294/2019, this Revision Petition is filed.
2. Sri Sabeel Ahmed, learned counsel for petitioners submitted that petitioners' father Husen Sab was complainant in PCR.no.294/2019 filed under Section 200 of CrPC stating that his father Shek Umar Sab died in year 1977. And as complainant's mother Fatima Bee died when complainant was still very young, his father had married Shek Khatoon Bee. That his father Husen Sab was working in Sugar Factory and purchased properties bearing Sy.no.58/2C2, Sy.no.376/B, Sy.no.85/2 and D.no.2/327, D.no.2/336 in name of his second wife - Shek Khatoon Bee ('SKB') in year 1968-69.
3. Thereafter for about 20 years, they were living together and SKB who did not have any children treated complainant as her own son. It was further stated that in order to provide maintenance to SKB and for bright future of -4- NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 complainant, his father has purchased land bearing Sy.no.376/B measuring 8.95 Acres. During childhood they shifted to Mariyammanahalli for cultivation. When complainant was 25 years of age, his father died due to illness. Thereafter, SKB lived with him at Hosapete for few years before shifting to Mariyammanahalli. Even thereafter complainant often visited her, enquired about her health provided her with money, etc. and took care of her. But by year 2008-09, her health had deteriorated, she was unable to move around and also lost memory.
4. Thereafter, due to establishment of industries, value of land in Mariyammanahalli increased, when her relatives Nabi Sab and B. Allabakshi joined together with intention to grab lands from SKB, began visiting her and collecting details of said lands. It was stated, complainant had also cautioner her. Thereafter, land bearing Sy.no.376/B was acquired for BMM Factory. Therefore, Nabi Sab and others planned to illegally sell land. And with such intention, they provided wrong information to SLAO, Davanagere that husband of SKB had died and she was his only wife and she did not have any legal heirs. Thereby, they intended to take compensation. Immediately -5- NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 after coming to know about such plan in year 2012, complainant got issued legal notice through his lawyer, on 15.11.2012 intimating SLAO not to release any compensation. Thereafter, complainant also filed O.S.no.8/2013 before Civil Judge Senior Division and JMFC., Hosapete. Said suit was still pending. At time of recording evidence, it was noticed by Court that she was unable to identify name of her husband or about her marriage. Due to same, said proceedings was pending at stage of trial. But with intention to grab property, Nabi Sab and others prevented anyone from meeting SKB and also did not take care of her health and under such circumstances got her to sign wherever they intended. Thereafter Nabi Sab filed application to appear on her behalf as her Power of Attorney in OS no.8/2013.
5. On 10.10.2014, a complaint was filed with Mariyammanahalli Police Station that SKB was aged 85 years suffering ill-health and loss of memory was kidnapped and confined at Nidugurti village, Sandur since one year by preventing anyone from meeting her. When complainant enquired with Nabi Sab and his children about her well being, he was threatened with his life. Therefore, complainant sought -6- NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 intervention to have SKB examined at Health Centre and ensure her well being. It was stated that complaint was acknowledged with D.P.no.157/2014, wherein SHO had merely advised accused without taking any action. During pendency of above suit, complainant learnt that by suppressing pendency of suit and misusing SKB's ill-health and by forcing her, accused had fraudulently got issued cheque for Rs.35,80,000/- on 05.01.2015 and after remitting it for collection in Account no.017500301050005 at Bank of India, Mariyammanahalli Branch, withdrew amount without knowledge of complainant and used it to construct a house worth Rs.40,00,000/- in Mariyammanahalli in name of Nabi Sab.
6. It was further stated that when SKB died on 14.08.2017, complainant received information about it from someone else. When complainant enquired with Nabi Sab, indifferent attitude was displayed. In view of above, it was evident that accused had with intention to grab immovable properties of SKB formed an unlawful assembly conspired to grab her properties got created a bogus Will and claimed right over properties. It was alleged that without taking care of her health and by confining her forcibly got her to execute Will. It -7- NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 was also alleged that accused had on 23.10.2013 got said Will registered. Alleging that it was obtained by coercion and fraud, action was sought to be taken against persons involved.
7. It was submitted, on receipt of complaint, preliminary enquiry was conducted on 11.01.2018, learned trial Court referred matter to jurisdictional Police Station under Section 156 (3) of Code of Criminal Procedure, 1973 ('CrPC' for short) for registering said complaint. On same day, Crime no.3/2018 was registered based on said reference. It was submitted, after completion of investigation Hospete Town Police Station had filed 'B' Report on 18.05.2018, stating that dispute between parties are pending before Civil Court and entire complaint allegations are civil in nature and concluded that accused no.1 to 4 has not committed any offences. It was submitted, on 20.06.2019, petitioners had filed protest memo on detail explanation of material facts and also omissions by Investigating Officer ('IO') and further stated that complainants had sufficient material to prove allegations against accused and report prepared by IO under influence with political backings and sought for rejection of 'B' Report.
-8-
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024
8. It was submitted, impugned order was passed by learned Magistrate on 10.08.2023, was erroneous and without appreciating material facts and also omissions of Investigating Officer. It was stated that accused by taking undue advantage of old age of SKB, they had created Will to knockout properties of complainant. It was submitted, complainants are legal heirs of SKB and accused has no manner of right, title or interest either to inherit properties or succeed as legal heirs. It was submitted, when DP proceedings before Deputy Commissioner, SKB has specifically stated that 'she has not executed any document in favour of any person', but, conduct of accused getting properties in their favour would clearly establish ingredients of provisions under Section 506, 120B, 405, 406, 467, 468, 471, 420 read with Section 34 of IPC.
9. It was submitted, conclusion arrived by IO was merely on ground that civil suit was pending, but, when complainants has specifically alleged against fraudulent act of accused to invoke above said provisions. Without proper investigation into said aspect, IO had erroneously came to conclusion by filing negative report. Thereafter, protest petition was filed by father of petitioner contending material facts to set-aside 'B' Report -9- NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 and after death of father of petitioner, they came on record, however without providing sufficient opportunity to petitioners, learned Magistrate dismissed petition. And impugned order was contrary to ratio laid down by this Court in case of Dr.Ravikumar v. K.M.C. Vasantha, reported in 2017 SCC OnLine Kar 4731 and on above grounds, sought for allowing petition.
10. On other hand, Sri Hanumanthareddy Sahukar, learned counsel appearing for respondent no.3 - accused no.2 sought to justify impugned order. It was submitted, complaint was filed with sole intention of harassing accused without disclosing commission of any offences. It was submitted, on one hand, complainants had filed suit for partition and another suit challenging Will executed in favour of accused by SKB in year 2013. Much thereafter, i.e. in 2017 without fresh cause of action, complaint was filed and same was not maintainable.
11. It was further submitted that after filing of protest petition, matter was adjourned on sufficient occasions to proceed with enquiry. However said opportunity was not availed. Even after his death and petitioners coming on record
- 10 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 as legal representatives matter was adjourned for hearing on 'B' report on several occasions, when petitioners had failed to seek opportunity to produce material. Therefore, they would be deemed to have waived opportunity. On above grounds sought for dismissal of petition.
12. Sri Jairam Siddi, learned HCGP submitted State was formal party and would adopt submissions of counsel for respondent.
13. Heard learned counsel, perused impugned order and available material.
14. From above, point that would arise for consideration:
"Whether impugned order calls for interference?"
15. This revision petition is by legal representative of complainants (petitioners) questioning order passed in PCR.no.294/2019, accepting 'B' report filed by prosecution on finding falsity of complaint.
16. Where 'B' report was accepted without following proper procedure laid down in Dr.Ravikumar's case (supra), this Court held as follows:
- 11 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024
5. The procedure followed by the Learned Magistrate is not in accordance with law. 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 between Abhinandan Jha v. Dinesh Mishra [AIR 1968 S.C. 117.] (para 15) and also Full Bench decision of Apex Court in between Kamalapati Trivedi v. State of West Bengal [(1980) 2 SCC 91.] (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
- 12 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 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 complaint/Protest Petition and contents therein, if the Magistrate is of the opinion that, to 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.
- 13 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024
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.
17. Though learned counsel for respondent has sought to contend that adjournment of matter for hearing on B report itself amounted to opportunity as petitioners herein had failed to file any application seeking time to lead evidence, they could not be permitted to challenge order on said technical ground.
18. Perusal of order sheet of proceedings before trial Judge would reveal, 'B' report was filed on 16.05.2018 and complainant filed protest petition on 26.09.2019. Thereafter, matter was listed for enquiry on several dates from 03.10.2019 to 24.06.2022. In meanwhile, on 29.07.2020 complainant died. On 15.07.2022, legal heirs of complainant filed application
- 14 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 under Section 256(2) of CrPC for their impleadment. Said application was allowed on 29.08.2022 and on 19.11.2022, amended complaint was filed. Thereafter, instead of posting matter for enquiry, learned Magistrate posted it for hearing on 'B' report and passed impugned order on 10.08.2023.
19. Once, application for bringing legal representatives is allowed, they would require to be treated as complainant and offered opportunity afresh. High Court of Madras in case of S. Sam Sundar Singh v. Inspector of Police, reported in 2016 SCC OnLine Mad 21153 held as follows:
"20. In case a negative final report is filed, the learned Magistrate after giving notice to the defacto complainant, some times to the victim, in some cases, to the relatives or legal heirs of the deceased, shall receive 'protest petition', if any filed by them, treat it as 'a complaint', enquire accordingly and pass orders thereon. (See 200, 202, 203, 204, 190(1)(b) Cr.P.C.)".
20. And as legal representatives can be considered to have come on record only from date of allowing of application, any amount of opportunity granted/availed by original complainant - their predecessor, cannot be taken as opportunity granted to legal representatives. As such, trial Court would have erred in procedure at time of passing orders on 'B' report. Failure to grant opportunity to lead evidence in
- 15 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 support of their protest petition would amount to denial of substantive right, same would qualify for interference in revision petition under Section 397 of CrPC.
21. Though learned counsel for respondent has sought to contend that complainants had filed O.S.no.8/2013 for partition and another suit challenging Will dated 23.10.2013 and for consequential reliefs, subject matter of complaint was substantially civil in nature and therefore, complaint under Section 200 of CrPC was an abuse of process of Court, and sought for dismissal of revision petition, such consideration would essentially have to be at hands of trial Court on examination of entire material in 'B' report as well as material that Complainant may place on record during enquiry.
22. At this stage, learned counsel for respondents would submit that there are efforts for settlement between parties and suit having been disposed of was at present pending before this Court in RSA.no.100019/2025.
23. Learned counsel for petitioners would submit, in case of settlement, they would not pursuit cause herein.
24. Submission noted.
- 16 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024
25. Wherefore, and taking note of fact that complaint was filed in year 2017, and as both parties are duly represented before this Court, it would be appropriate to remit matter back to trial Court by fixing date of appearance and time limit for passing orders on 'B' report afresh by following procedure laid down in Dr.Ravikumar's case (supra). Point for consideration is answered in affirmative. Consequently, following:
ORDER Criminal Revision Petition is allowed, impugned order dated 10.08.2023 passed by Principal Civil Judge and JMFC., Hosapete in PCR.no.294/2019 set aside. Matter remitted back to trial Court for passing orders on 'B' report afresh, by following procedure clarified in Dr.Ravikumar's case (supra) and taking note of observations made herein above, within an outer limit of four months from 03.03.2025, which shall be next date of appearance by parties before trial Court, without awaiting fresh notice.
It is clarified that trial Court shall continue further proceedings from stage of filing of protest petition, taking protest petition filed by original complainant as that of
- 17 -
NC: 2025:KHC-D:2865 CRL.RP No. 100345 of 2024 petitioners also and with liberty to petitioners to add to it if they intend to on first date of hearing fixed hereinabove or on one short date if sought for.
It is clarified that parties would be at liberty to settle matter either in these proceedings or in RFA.no.100019/2025.
SD/-
(RAVI V.HOSMANI) JUDGE GRD,CLK,RH CT:PA LIST NO.: 1 SL NO.: 32