Karnataka High Court
Smt Srilatha vs Brunda C on 5 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:14164
CRL.P No. 6659 of 2018
C/W CRL.P No. 4264 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 6659 OF 2018
C/W
CRIMINAL PETITION NO. 4264 OF 2019
IN CRL.P NO.6659/2018
BETWEEN:
1. SMT. SHASHIKALA M. V.
W/O S. V. SURESH,
HINDU, AGED ABOUT 59 YEARS,
R/AT NO.10/12, 1ST CROSS,
IST BLOCK, JAYANAGAR,
BENGALURU - 560 011.
2. SRI. S. V. SURESH
S/O S. VEERAPPA,
HINDU, AGED ABOUT 65 YEARS,
R/AT NO.10/12, 1ST CROSS,
IST BLOCK, JAYANAGAR,
Digitally signed by BENGALURU - 560 011.
VEDAVATHI A K
Location: High
Court of Karnataka 3. SMT. SUMA M. V.
W/O J. ASWATHANARAYANAPPA,
HINDU, AGED ABOUT 55 YEARS,
R/AT NO.62-F, IST FLOOR,
6TH MAIN, 5TH BLOCK,
JAYANAGAR, BENGALURU - 560 041.
4. SRI. J. ASWATHANARAYANAPPA
S/O J. VENKATAPPA,
HINDU, AGED ABOUT 59 YEARS,
R/AT NO.62-F, IST FLOOR,
6TH MAIN, 5TH BLOCK,
JAYANAGAR, BENGALURU - 560 041.
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NC: 2024:KHC:14164
CRL.P No. 6659 of 2018
C/W CRL.P No. 4264 of 2019
5. VIGNESH
S/O J. ASWATHANARAYANAPPA,
HINDU, AGED ABOUT 25 YEARS,
R/AT NO.62-F, IST FLOOR,
6TH MAIN, 5TH BLOCK,
JAYANAGAR, BENGALURU - 560 041.
...PETITIONERS
(BY SMT. PRAMILA NESARGI, SENIOR ADVOCATE FOR
SMT. BINDU U, ADVOCATE)
AND:
1. BRUNDA C
AGED ABOUT 48 YEARS,
W/O LATE M. V. PRAKASH,
R/A NO.62-F, GROUND FLOOR,
6TH MAIN, 5TH BLOCK,
JAYANAGAR, BENGALURU - 560 041.
2. THE STATE OF KARNATAKA
REPRESENTED BY JAYANAGAR POLICE STATION,
BENGALURU.
REPRESENTED BY SPP HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENTS
(BY SMT. ANITHA GIRISH N., HCGP FOR R2;
SRI. RAGHAVENDRA K., ADVOCATE FOR R1-(ABSENT) )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
18.08.2017 PASSED BY THE IV ADDL.C.M.M., BENGALURU IN
C.C.NO.27993/2017 (CR.NO.314/2012) AT ANNEXURE-D AND
ALL FURTHER PROCEEDINGS PENDING ON THE FILE OF IV
ADDL.C.M.M., BENGALURU.
IN CRL.P NO.4264/2019
BETWEEN:
1. SMT. SRILATHA.
W/O RAVINDRANATH T.,
HINDU, AGED ABOUT 50 YEARS,
R/AT NO.285, 6TH CROSS,
1ST BLOCK, I STAGE, INDRANAGAR,
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NC: 2024:KHC:14164
CRL.P No. 6659 of 2018
C/W CRL.P No. 4264 of 2019
BANGALORE - 560 038.
2. RAVINDRANATH T
S/O THIPANNA,
HINDU, AGED ABOUT 54 YEARS,
R/AT NO.285, 6TH CROSS,
1ST CROSS, I STAGE, INDRANAGAR,
BANGALORE - 560 038.
...PETITIONERS
(BY SMT. PRAMILA NESARGI, SENIOR ADVOCATE FOR
SMT. BINDU U, ADVOCATE)
AND:
1. BRUNDA C
AGED ABOUT 48 YEARS,
W/O LATE M. V. PRAKASH,
R/A NO.62-F, GROUND FLOOR,
6TH MAIN, 5TH BLOCK,
JAYANAGAR,BENGALURU - 560 041.
2. THE STATE OF KARNATAKA
JAYANAGAR POLICE STATION,
BENGALURU.
REPRESENTED BY SPP,
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENTS
(BY SMT. ANITHA GIRISH N., HCGP FOR R2/STATE;
R1-SERVED )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
18.08.2017 PASSED BY THE IV ADDL.C.M.M., BENGALURU IN
C.C.NO.27993/2017 (CR.NO.314/2012) AT ANNEXURE-D AND
ALL FURTHER PROCEEDINGS PENDING ON THE FILE OF IV
A.C.M.M., BENGALURU.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:14164
CRL.P No. 6659 of 2018
C/W CRL.P No. 4264 of 2019
ORDER
The Crl.P.No.6659/2018 is filed by the petitioners/accused Nos.1 to 5 and Crl.P.No.4264/2019 is filed petitioner/accused Nos.6 and 7 under section 482 of Cr.P.C., for setting aside the order of taking cognizance by the IV ACMM, Bengalur in C.C.No.27993/2017, dated 18-08-2017 and issuing summons against these petitioners for the offences punishable under Sections 420, 406 and 504 of IPC.
2. Heard the learned senior counsel for petitioners and learned HCGP for respondent No.2. Learned counsel for the respondent No.1 remained absent.
3. The case of the petitioner is that the respondent No.1, Brunda had filed complaint to the police alleging that she married to one M.V.Prakash and he died on 03-05- 2023 and having two children. The mother-in-law of the complainant Kamalamma said to have left the 'Will' in favour of the complainant and she also said to be died in -5- NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 the year 2005. Later, there was family dispute between these petitioners, who are the in-laws of the complainant and she has alleged that there was conditions in the 'Will' that 'Will' will come to force only after the son of the complainant attains the age of 30 years and it is alleged that at the instance of accused persons they have made such condition in the 'Will' in order to misuse or commit misappropriation over the property of her in-law. After registering of the complaint, the police registered the FIR in Crime No.314 of 2012 by Jayanagar Police station and after the investigation, they filed 'B' final report. After receipt of the 'B' final report, the trial court issued notice to the de-facto complainant, accordingly the complainant appeared through the counsel and filed protest petition before the court. The learned Magistrate recorded sworn statement of the complainant and thereafter passed the impugned order on 18-08-2017 by setting aside the 'B' final report and directed the office to register criminal case and ordered to issue summons, for the offences -6- NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 punishable under sections 406, 409, 480, 420, 425, 491 and 504 of IPC, which is under challenge.
4. Learned senior counsel for the petitioners seriously contended that the Magistrate committed error in issuing process against petitioners, only by rejecting the 'B' final report and there is no judicial order for taking cognizance and issuing process, as per section 202 of Cr.P.C. and the coordinate bench of this court also held in similar case of Ravikumar V. KMC Vasanta and Ors in Crl.P.No.536/2017 dated 27-11-2017 and contended this court has laid down the law as to how to deal with the matter when the 'B' final report is filed, while rejecting the 'B final report' and taking cognizance against the accused under sections 200 to 202 of Cr.P.C. Therefore, prayed for quashing the proceedings.
5. Learned HCGP objected the petition. Learned counsel for the respondent No.1 remained absent. -7-
NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019
6. Having heard the arguments, perused the records and on perusal of the same it is not in dispute, the respondent No.1 filed complaint to the police, FIR has been registered. Admittedly, the police after the investigation filed 'B' final report. As per the order sheet, which reveals the trial court directly issued the notice to the de-facto complainant. Accordingly, de-facto complainant filed protest memo before the Magistrate on 29-12-2014 and thereafter the trial court recorded the sworn statement of the complainant was completed on 16- 07-2016. Thereafter, passed the impugned order by rejecting the 'B' final report and taking cognizance. The coordinate bench of this court in Ravi Kumar's case stated supra has categorically held and laid down the law at paragraph 5, sub para 1 to 7. 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' file Summary -8- NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 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 (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.-9-
NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019
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 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
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NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 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." On perusal at sub paragraph 7 where the coordinate bench of this court has held on the basis of the contents of the protest petition and after relying upon the contents of the protest petition and the sworn statement, the learned Magistrate has rejected the 'B' final report, which virtually amounts to putting the horse behind the cart. The coordinate bench also held that the contention of the protest petition should be looked into before taking cognizance, then only be used for limited purpose of
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NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 ascertaining, whether investigation done by the police is proper and correct? Thereby, the Magistrate committed serious error in not passing any order and taking cognizance. Here in this case, the learned Magistrate though passed the order by rejecting B final report but taken the cognizance and issued the summons. There is no separate order passed by the learned Magistrate after rejecting the 'B final report' and posted the matter for recording the sworn statement and thereafter verifying the protest petition and took the cognizance by issuing process under section 204 of Cr.P.C. But it appears both the taking cognizance and rejecting B final report are conjointly passed order by the Magistrate, which is not correct and it is against the principle laid down by the coordinate bench of this court. Therefore, I am of the view, the order of issuing summons to the petitioner by taking cognizance is hereby required to be set aside. Accordingly, I proceed to pass the following order;
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NC: 2024:KHC:14164 CRL.P No. 6659 of 2018 C/W CRL.P No. 4264 of 2019 ORDER Both these petitions are allowed.
The order of taking cognizance, in C.C.No.27993/2017 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru dated 18.8.2017, is hereby set aside. The matter is remitted back to the Magistrate for following the procedure stated by the co- ordinate bench in Crl.P.No.536/2017 in Ravikumar's case stated supra and dispose the matter in accordance with law.
Sd/-
JUDGE AKV List No.: 1 Sl No.: 10 CT:SK