Smt. Margarate vs State Of Karnataka
2021 Latest Caselaw 746 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION No.4614/2020

BETWEEN:

1.   SMT. MARGARATE
     W/O SHAIJAN K G,
     AGED ABOUT 32 YEARS,
     RESIDING AT NERTHANE HOUSE
     DHARMASTALA,
     BELTHANGADY TALUK
     D K - 574 216,

     AND ALSO AT 2-72/2
     KURIYALSHERRY HOUSE,
     BELTHANGADY TALUK,
     GANDIBAGILU, NERIYA,
     DAKSHINA KANNADA - 574 228.

2.   SMT. MARY
     W/O MATHAYI,
     AGED ABOUT 59 YEARS.

3.   SRI MATHAYI,
     S/O THAMYAN MATHAYI,
     AGED ABOUT 66 YEARS.

     PETITIONERS No. 2 AND 3 ARE
     RESIDING AT NERTHANE HOUSE
     DHARMASTALA,
     BELTHANGADY TALUK
     D K 574 216.                          ... PETITIONERS

            (BY SRI. RAKSHITH KUMAR, ADVOCATE)
                                 2



AND:

1.     STATE OF KARNATAKA
       BY DHARMASTALA POLICE STATION,
       DHARMASTALA,
       BELTHANGADY TALUK
       D K - 574 216.

2.     SMT. RASHMI
       W/O JAYANNA,
       AGED ABOUT 38 YEARS,
       RESIDING AT NERTHANE HOUSE
       DHARMASTALA,
       BELTHANGADY TALUK
       D K 574 216.                              ... RESPONDENTS

          (BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1
             SRI. CHANDRAPPA K.N., ADVOCATE AND
                SRI. KIRAN N., ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ORDER DATED 24.05.2019
PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE AND JMFC
BELTHANGADY IN CR.NO.128/2017 OF DHARMASTALA POLICE
STATION NOW REGISTERED AS C.C.NO.1376/2019 PENDING
BEFORE PRINCIPAL CIVIL JUDGE AND JMFC, BELTHANGADY, D.K.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Heard the learned counsel for the petitioners and learned

counsel appearing for the respondent No.2 and the learned High

Court Government Pleader for respondent No.1.

2. This petition is filed under Section 482 of Cr.P.C.

praying this Court to quash the order dated 24.05.2019 passed

by the Principal Civil Judge and JMFC, Belthangady in

Cr.No.128/2017 of Dharmastala Police Station now registered as

C.C.No.1376/2019 on the file of Principal Civil Judge and JMFC,

Belthangady, Dakshina Kannada.

3. The factual matrix of the case is that the incident

was taken place on 11.08.2017 at around 5.15 p.m and the

complaint was lodged. Based on the complaint, a case has been

registered for the offence punishable under Sections 341, 504,

323, 354, 506 read with Section 34 of I.P.C. The police have

investigated the matter and filed 'B' report, which was

questioned before the Magistrate by filing the protest memo and

thereafter, the sworn statement of the complainant was recorded

and the process was issued against the petitioners. Hence, the

present petition is filed before this Court.

4. The main ground urged in this petition is that these

petitioners are falsely implicated in the case. The first complaint

was given by these petitioners and the case was registered in

Crime No.127/2017 and as an afterthought, the respondent No.2

had lodged the complaint and based on the said complaint, a

case in Crime No.128/2017 has been registered for the same

offences.

5. Learned counsel also would submit that the timings

of the incident in both cases are different i.e., one at 5.15 p.m.

and another at 5.30 p.m. and only as a counterblast, the

complaint is filed, which amounts to an abuse of process of law.

The Magistrate also committed an error in taking the cognizance,

for which no order is passed and then proceeded to record the

sworn statement of the complainant. After recording the sworn

statement, the Magistrate committed an error in issuing the

process against these petitioners. Hence, it requires interference

of this Court.

6. Learned counsel for the complainant relied upon the

judgment of this Court in the case of Dr. Ravikumar v.

Mrs.K.M.C. Vasantha and Another reported in ILR 2018 KAR

1725 and would contend that for acceptance or rejection of 'B'

Summary Report by the learned Magistrate, the procedure has

to be followed and there is non-application of judicious mind to

the statutory provisions by the Courts. Without accepting the 'B'

summary report, the Magistrate ought not to have proceeded to

record the sworn statement. Learned counsel also would submit

that this Court in Crl.P.No.4883/2013 quashed the order of the

Magistrate and the matter was remitted back to the learned

Magistrate to consider the 'B' summary report afresh in the light

of the law laid down in the decision referred supra.

7. Per contra, learned counsel appearing for the

respondent No.2 would submit that the police after investigating

the matter have filed 'B' report and thereafter, the protest

petition has been filed. The learned Magistrate proceeded to

record the sworn statement. After considering the material

available on record and also the contents of protest petition and

so also the sworn statement of the complainant, the Magistrate

issued the process and complied Sections 200 and 204 of Cr.P.C.

Hence, this Court cannot invoke Section 482 of Cr.P.C. to quash

the same.

8. Learned High Court Government Pleader submits

that the Magistrate applied his mind and followed the procedure

and the powers under Section 482 of Cr.P.C. cannot be invoked.

9. Having heard the submissions of the learned counsel

for the respective parties, and on perusal of the records, there is

no dispute that after the registration of the case, police have

investigated the matter and filed 'B' report and the same is

questioned by respondent No.2 by filing the protest petition. The

learned Magistrate proceeded to record the sworn statement and

thereafter, issued the process. It is not in dispute that

respondent No.2 had filed the protest petition and thereafter, the

Magistrate proceeded to record the sworn statement. No doubt,

there is no specific order with regard to taking of cognizance.

The Magistrate proceeded to record the sworn statement is

nothing but the Magistrate deemed to have taken cognizance as

held by the Apex Court as reported in 2006(1) KAR. LJ. 118

(SC) and this Court in the case of Shivaraj v. The State of

Karnataka reported in 2019 (7) KLJ 44.

10. The other contention of the learned counsel for the

petitioner is that the Magistrate has committed an error in taking

the cognizance. On perusal of the order dated 24.05.2019,

learned Magistrate has in detail discussed the factual aspects of

the case and also considered the material available on record

taking note of the contents of the complaint and also the protest

petition so also considered the 'B' report submitted by the police.

11. Having perused the contents of the complaint,

protest petition, the sworn statement of the complainant and the

order rejecting the 'B' report submitted by the police and

issuance of the process against the petitioners herein invoking

Section 204 of Cr.P.C., no doubt, the learned Magistrate while

passing the order mentioned that the cognizance is taken. If

such word is used in the order, it shall be redundant since the

Magistrate had already proceeded to record the sworn statement

of the complainant, which amounts to taking of cognizance. If

any such word is used while issuing the process, the same shall

be redundant in view of the judgment referred supra by this

Court in Shivaraj's case.

12. Having perused the material available on record, I do

not find any error committed by the learned Magistrate and has

complied the provisions as contemplated under Section 200 of

Cr.P.C. and that after considering the material on record,

proceeded to issue the process under Section 204 of Cr.P.C. It

is also important to note that there is a case and counter case in

respect of the same incident.

13. In view of the discussion made above, I pass the

following:-

ORDER

The petition is dismissed.

Sd/-

JUDGE

PYR