Karnataka High Court

Bhujabali Pasane vs The State Of Karnataka And Anr on 1 July, 2021

Author: Rajendra Badamikar

                              1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 1ST DAY OF JULY, 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

         CRIMINAL PETITION No.200310/2021


BETWEEN:

Bhujabali Pasane
S/o. Kallappa Pasane
Age: 38 years, Occ: Government
Servant, R/o. Satvika Building
12th Cross, Near Indian Oil Petrol
Pump, Udapi - 576101
                                             ... Petitioner

(By Sri Ameet Kumar Deshpande, Advocate)

AND:

1.     The State of Karnataka
       Jalanagar Police Station
       Vijayapura - 585101
       Through its PSI
       Represented by the Additional
       State Public Prosecutor, High Court
       of Karnataka, Kalaburagi Bench

2.     Prasanna Malkajappa Angadi
       Age: Major, Occ: Govt. Servant
       R/o. Gandhinagar
       Vijayapura, Through PSI
                                           ... Respondents
(By Sri Sharanabasappa M. Patil, HCGP for R1;
R2 served, unrepresented)
                               2


        This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to allow this petition and quash the order
dated 02.09.2020 passed in C.C.No.178/2020 on the file of
the III Addl. Civil Judge and JMFC, Vijayapura, rejecting
the 'B' false report filed by the Investigating Officer and
further taking cognizance against the petitioner herein in
Crime No.18/2017 of Jalanagar police station, Vijayapura
and to pass any other appropriate orders as may be
deemed necessary in the facts and circumstances of the
case.


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


                          ORDER

The petitioner has filed this petition under Section

482 of Cr.P.C. for quashing the order dated 02.09.2020

passed in C.C.No.178/2020 on the file of III Additional Civil

Judge and JMFC, Vijayapura, whereby, he has rejected the

'B' false report submitted by the investigating officer and

further taking cognizance against the present petitioner in

Crime No.18/2017 of Jalanagar police station, Vijayapura.

2. The factual matrix leading to this case are that

the complainant/respondent No.2 has lodged a FIR with

Jalanagar police station, Vijayapura against the present

petitioner for the offences punishable under Sections 323,

324, 307, 504, 506 read with Section 34 of IPC along with

other accused persons. The police after registering the

complaint in Crime No.18/2017 and after investigating of

the matter, the investigating officer has found that there is

no material as against the present petitioner and other

accused person has submitted the 'B' final report. In

pursuance of the 'B' final report, the learned Magistrate

without applying his judicious mind to the 'B' final report,

has straightway issued noticed to the

complainant/respondent No.2, who has appeared and filed

protest petition. Thereafter, sworn statement of the

complainant and one witness was also recorded and seven

documents were marked. Thereafter, the learned

Magistrate vide his order dated 02.09.2020 rejected the 'B'

final report submitted by the investigating officer and

taken cognizance for the offences punishable under

Sections 323, 324, 504 and 506 of IPC with a direction to

issue summons to the present petitioner.

3. Being aggrieved by this order of taking

cognizance and issuance of summons, the petitioner has

filed this petition under Section 482 of Cr.P.C. for quashing

the impugned order.

4. The learned counsel for the petitioner would

submit that the entire procedure adopted by the learned

Magistrate is against the settled principles of law and

entire proceedings stand vitiated. The learned Magistrate

has not applied his judicious mind and he has neither

rejected the 'B' final report nor appreciated it and after

recording the sworn statement, finally he has rejected the

'B' final report, which is not in accordance with law and

against the mandate of law. He has placed reliance on the

decision of this Court reported in ILR 2018 KAR 1725 in

the case of Dr. Ravikumar vs. Mrs.K.M.C. Vasantha.

He would further submit that the principles enunciated in

the above said decision are directly applicable to the

factual aspects in the present case. Hence, he has sought

for setting aside the impugned order.

5. Heard the learned High Court Government

Pleader for respondent No.1 - State. Respondent No.2

though served, is unrepresented.

6. Having heard the arguments and perusing the

records, it is evident that the investigating officer has

initially submitted a 'B' false report and after receipt of the

'B' false report, the learned Magistrate has directly issued

notice to the complainant. The certified copy of the order

sheet does disclose that the learned Magistrate has not

applied his mind to the 'B' false report. He has neither

accepted nor rejected the 'B' false report to verify whether

further investigation is required or not. However, after

filing of the protest petition, he straightaway proceeded to

record the sworn statement of the complainant and one

witness and documents were also got marked. Then, by

the impugned order dated 02.09.2020, he has rejected the

'B' false report and directly issued summons against the

present petitioner/accused.

7. The learned counsel for the petitioner has

placed reliance on the decision of this Court in the case of

Dr. Ravikumar (Supra), wherein, in the similar set of

situation, this Court by relying on the decision of the

Hon'ble Supreme Court, has laid down certain procedure

as to how the Magistrate is required to act after receipt of

the 'B' final report. This can be found in paragraph No.5 of

the said judgment, which reads as under:

"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 Honble 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."

8. In the instant case also, the learned Magistrate

has not followed any of these procedures as contemplated.

But, on the other hand, without rejecting the 'B' false

summary report and without taking cognizance, he has

issued notice to the complainant and then after recording

his sworn statement, issued summons to the present

petitioner. This is against the settled principles of law and

the procedure contemplated under Sections 200 to 204 of

Cr.P.C. is not followed by the learned Magistrate. He has

not applied his judicious mind to the statutory provisions.

Hence, the petition needs to be allowed. However, the

question of quashing the entire proceedings does not arise