1 ® IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. No. 536/2017 BETWEEN DR. RAVIKUMAR, AGED ABOUT 36 YEARS S/O SHIVALINGAPPA M. S., R/AT AGRAHARA BADAVANE, BANAVARA POST, ARASIKERE TALUK, HASSAN DISTRICT, KARNATAKA ... PETITIONER (BY SRI. P. P. HEGDE, ADV.) AND 1. MRS. K. M. C. VASANTHA, AGED 34 YEARS, W/O C. D. KIRAN, R/AT MAVINATHOPU, CHIKKAMAGALURU. 2. THE STATE-THROUGH THE SUB INSPECTOR OF POLICE, CHIKMAGALURU TOWN POLICE STATION, CHIKAMAGALURU, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA AT BENGALURU-560 001 ... RESPONDENTS (BY SRI. N. R. RAVIKUMAR, ADV. FOR R-1. SRI. S. RACHAIAH, HCGP FOR R-2.) 2 THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 30.07.2015 PASSED BY THE PRL. SR. C.J. AND C.J.M., CHIKMAGALURU IN C.C.NO.620/2015 (CR.NO.23/2014) OF CHIKKAMAGALURU TOWN POLICE STATION), REJECTING THE 'B' FINAL REPORT FILED BY THE POLICE AND DIRECTING TO REGISTER THE CRIMINAL CASE AGAINST THE ACCUSED/PETITIONER HEREIN FOR THE OFFENCES P/U/Ss. 354D, 506, 507 OF IPC. THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel for the petitioner and the Respondent. Perused the records.
2. The records disclose that Respondent No.1-Smt. K.M.C. Vasantha, has lodged an FIR before Chikmagaluru Town Police Station, against the petitioner herein for the alleged offences punishable under Sections 354(D), 506, 507 of IPC. The same has been registered in FIR No.23/2014. The allegations made in the FIR are that, the accused/petitioner was sending filthy messages to the respondent to her phone number with the help of various phone numbers and he was also threatening her with dire consequences of killing her husband and to kidnap her and will not allow her to live happily with her husband. On these allegations the police investigated the matter and submitted ‘B’ Summary Report to the Court. The Court passed an order on 30.07.2015 rejecting the ‘B’ Summary Report and registered a criminal case against the accused for the offences punishable under sections 354(D), 506 and 507 IPC. The order of issuance of summons has been called in question before this court.
3. Learned counsel for the petitioner Sri P.P. Hedge, has strenuously contends that, the trial Magistrate has not even considered the contents of ‘B’ Summary Report and has not whispered anything about ‘B’ Summary Report as to why the same has to be rejected. Secondly, he contends that the objection filed to ‘B’ Summary Report does not contain any specific allegations against the petitioner which attract the provisions under Sections 506, 354 of IPC to take cognizance. Thirdly, the learned counsel contends that, the sworn statement given by the respondent and her husband also do not contain any specific allegation, which attract the above said provisions of Indian Penal Code. Therefore, the learned Magistrate without looking into all these matters has issued summons to the accused, which is bad in law and the same is liable to be quashed.
4. On careful perusal of the entire materials on record, it is noticed that, the police have submitted ‘B’ Summary Report before the court. As could be seen from the order sheet of the trial Court, there is no whisper in the order sheet regarding accepting or rejecting of the ‘B’ report, but, simultaneously at the time of issuing summons, ‘B’ Summary Report has been rejected. It is noticed that, earlier no order has been passed with reference to the ‘B’ Summary Report before taking cognizance on the basis of the objections statement to the ‘B’ Summary Report filed by the complainant. On the other hand, it is seen that immediately after filing of the protest petition, the learned Magistrate has proceeded to provide an opportunity to the complainant to give her sworn statement before the court and also recorded the statement of the witnesses and thereafter, proceeded to issue process against the accused by rejecting the ‘B’ Summary Report.
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 ofCr.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.
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 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..
But, none of these procedures have been followed by the learned Magistrate. On the other hand, as could be seen from the records, the learned Magistrate even without rejecting the ‘B’ Summary report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. 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’ Summary Report which virtually amounts to putting the horse behind the Cart.
6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the learned Magistrate has committed a serious error in not passing any orders on the ‘B’ Summary Report before taking cognizance on the basis of the Protest Petition.
7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the court. The Magistrate has to explore all the options as noted above in accordance with law at right stages, which has not been done in this particular case. The learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the ‘B’ Summary Report, which is not proper and correct. He has to pass orders on the ‘B’ Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment.
8. The learned counsel for the petitioner has relied upon many rulings as to how the contents of the Protest Petition and the sworn statement of the complainant and statements of his witnesses have to be considered. There is no need to consider those rulings in view of the fact that the learned Magistrate, has committed the above said serious procedural irregularities and defects which are incurable in nature, and on which ground itself the order is not sustainable.
9. For the above said reasons, I am of the opinion that the learned Magistrate has passed the order impugned, without following the proper procedure. If the learned Magistrate simply looks into Sections 200 to 204 of Cr.P.C. that itself is sufficient and the provisions themselves would guide the Magistrate as to how he has to act upon. The non application of judicious mind to the statutory provisions in this case led to the irregularities committed by the learned Magistrate. Hence, the said order is liable to be set aside. Hence, I pass the following:
ORDER The Petition is allowed. The order dated 30.7.2015 passed by the Principal Senior Civil Judge & CJM, Chikkamagaluru in CC No.620/2015 (Crime No.23/2014 of Chikkamagaluru Town Police Station), is hereby set aside. The entire matter stands restored on to the file of the learned Magistrate with a direction to follow the procedure as narrated in the body of this order and only after looking into the provisions of Sections 200 and 204 of Cr.P.C. meticulously, the learned Magistrate has to pass an appropriate order in accordance with law.
In view of the disposal of the case on merits, IA No.1/2017 filed for stay, does not survive for consideration and the same is also dismissed.