Mrs. M.R.Gopi vs Sri.M.R.Prashanth on 4 September, 2019

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Karnataka High Court

Mrs. M.R.Gopi vs Sri.M.R.Prashanth on 4 September, 2019

Bench: John Michael Cunha

                            1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 04TH DAY OF SEPTEMBER, 2019

                         BEFORE

    THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

         CRIMINAL PETITION No.7649 /2016

BETWEEN:
Mr.M.R.Gopi
S/o Late Ramachandrappa,
Aged about 38 years,
Arecanut Merchants,
Rajalaxmi Traders,
#81, K.R.Market,
Davanagere - 577 001.
                                              ... Petitioner
(By Smt.Haleema Ameen, Advocate for
Sri.S.Vishwajith Shetty, Advocate)

AND:
Sri.M.R.Prashanth
S/o Late Ramachandrappa,
Aged about 38 years,
#81, K.R.Market,
Davanagere - 577 001.                  ... Respondent

(By Sri.Revanna Bellary, Advocate - Absent)

      This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the order dated 25.04.2016 and the
entire proceedings in C.C.No.540/2016 (PCR No.76/2014)
pending on the file of J.M.F.C-III, Davanagere.

      This Criminal petition coming on for Admission, this
day, the Court made the following:
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                        ORDER

Heard learned counsel for petitioner. Counsel for respondent is absent. Perused the records.

2. The undisputed facts are that the respondent herein filed a private complaint under Section 200 of Cr.P.C seeking action against the petitioner herein for the alleged offences punishable under Sections 120A, 120B, 419, 420, 465, 471, 500, 504, 506 of IPC. The learned Magistrate referred the compliant for investigation under Section 156(3) of Cr.P.C. After investigation, the Investigating Officer submitted 'B' summary report mainly on the ground that the alleged dispute is civil in nature and that the complainant failed to produce any document in support of the allegations made in the complaint. Without considering the 'B' summary report and without passing any orders thereon, the learned Magistrate proceeded to record sworn statement of the complainant and by the impugned order dated 25.04.2016 issued summons to the petitioner.

3. The procedure adopted by the learned Magistrate is contrary to the guidelines laid down in Kamalapati Trivedi Vs. State of West Bengal, which is followed by this Court in Dr. Ravi Kumar Vs. Mrs. KMC Vasantha & another, 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 4 Kamalapati Trivedi and State of West Bengal.

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."

In view of aforesaid decision and in view of the legal and factual position narrated above, the impugned order 5 and consequent proceedings undertaken by the learned Magistrate are liable to be quashed.

Accordingly, petition is allowed. Order dated 25.04.2016 passed in C.C.No.540/2016 (PCR No.76/2014) by the Court of J.M.F.C-III, Davanagere is hereby quashed.

Matter is remitted to the learned Magistrate to reconsider the 'B' summary report afresh in the light of the guidelines laid down in the above decision and thereafter, proceed with in accordance with law.

Sd/-

JUDGE UN

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