Karnataka High Court

Shri. Prasanna Sidramappa ... vs Shri. Ashok Yamanappa ... on 9 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 9TH DAY OF FEBRUARY 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.100290/2018

BETWEEN

SHRI PRASANNA SIDRAMAPPA TAMBAKE,
AGE: 55 YEARS, OCC: BUSINESS AND ENGINEER,
R/O: MAIN ROAD, GOKAK,
DIST: BELAGAVI.
                                             ...PETITIONER

(BY SRI G. B. NAIK AND SMT P. G. NAIK, ADVOCATES)


AND

1.    SHRI ASHOK YAMANAPPA LAGAMAPPAGOL,
      AGE: 51 YEARS, OCC: TEACHER,
      CHAIRMAN, SATYAMEV EDUCATION CHARITABLE TRUST
      AND
      BASAV JYOTI INDUSTRIAL TRAINING CENTRE,
      GOKAK-591307, DIST: BELAGAVI.

2.    SHRI PRAKASH APPAYYA BADIGER,
      AGE: 41 YEARS, OCC: PRINCIPAL,
      SATYAMEV EDUCATION CHARITABLE TRUST AND
      BASAV JYOTI INDUSTRIAL TRAINING CENTRE,
      GOKAK, DIST: BELAGAVI.

3.    SHRI KEMAPANNA PUNDALIK HARIJAN,
      AGE: 36 YEARS, OCC: TEACHER,
                             2




      SATYAMEV EDUCATION CHARITABLE TRUST,
      GOKAK, DIST: BELAGAVI.

4.    SMT MALA W/O ASHOK LAGAMAPPAGOL,
      AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
      SATYAMEV EDUCATION CHARITABLE TRUST,
      GOKAK, DIST: BELAGAVI.

5.    SHRI GIRISH BASAVANNI HALAGI,
      AGE: 36 YEARS, OCC: BUSINESS,
      R/O: HARIJAN GALLI, GOKAK,
      DIST: BELAGAVI.

6.    SMT MANJULA RAMACHANDRA HALAGI
      AGE: 36 YEARS, OCC: BUSINESS,
      R/O: HARIJAN GALLI, GOKAK,
      DIST: BELAGAVI.

7.    SHRI LAXMAN YAMANNAPPA MALLAWWAGOL,
      AGE: 51 YEARS, OCC: AGRICULTURE,
      R/O: MELAVANKI, TQ: GOKAK,
      DIST: BELAGAVI.

8.    SMT ANNAWWA W/O PUNDALIK HARIJAN,
      AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
      R/O: SHINGALAPUR, TQ: GOKAK,
      DIST: BELAGAVI.

9.    SHRI M.R. KOLAKI,
      AGE: 56 YEARS, OCC: BUSINESS,
      SATYAMEV EDUCATION CHARITABLE TRUST,
      GOKAK, DIST: BELAGAVI.

10.   SHRI R.G. BASTAWADAKAR,
      AGE: MAJOR, OCC: PVT. SERVICE,
      R/O: LAXMI EXTENSION,
      OPP. LAXMI TEMPLE,
      GOKAK, DIST: BELAGAVI.
                                3




11.     THE STATE
        THROUGH THE STATE PUBLIC PROSECUTOR,
        HIGH COURT OF KARNATAKA,
        DHARWAD BENCH, DHARWAD.
                                         ....RESPONDENTS

(BY SRI VITTHAL S.TELI, ADV. FOR RESPONDENT NO.1, 3 TO 8)
(NOTICE TO RESPONDENT NOS.2, 9 AND 10 ARE SERVED)
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NO.11 )


        THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING THAT THE ORDER PASSED IN CRIMINAL
REVISION PETITION NO.306/2016 DATED 05.09.2017 BY THE
XII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI AND
THE ORDER DATED 09.11.2015 PASSED BY THE PRINCIPAL
CIVIL    JUDGE   AND   JMFC,   GOKAK   IN   P.C.NO.188/2012
ACCEPTING THE 'B' REPORT BE QUASHED.


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


                           ORDER

The petition is filed by the complainant calling in

question the order passed by the revisional Court in

Criminal Revision Petition No.306/2016 dated 05.09.2017,

whereby the learned XII Additional District and Sessions

Judge, Belagavi sitting at Gokak confirms the order dated

09.11.2015, by which the B report was accepted and the

case in PCR.No.188/2012 stood closed.

2. Heard Smt P.G.Naik, appearing for petitioner-

complainant and Sri Vitthal S.Teli, learned counsel

appearing for respondent Nos.1 and 3 to 8 and Sri Ramesh

Chigari, learned HCGP appearing for respondent No.11-

State.

3. The only contention urged by the learned counsel

for the petitioner is that the petitioner-complainant was not

notified and heard when the B report was filed by the

Police. To buttress her submission learned counsel has

placed the entire order sheet obtaining in the case. The

relevant portion of the said order sheet reads as follows :

"17.10.2014 Comp-BSK Await F/R For Await F/R by 31.12.14

Sd/-

31.12.14 A/R Inspite of issuance of reminders, the PSI has not filed F/R. Hence issue

show cause notice to PSI. G.T. P.S. Call on 6/2/15.

Sd/-

Submitted The 'B' report filed By police is received and Kept in this file.

Complainant absent.

No representation.

For Obj. to B report, If any, by 6/3/15.

Sd/-

6/3/15 Complainant-BSK For Obj. Complainant absent. E.P. filed. MCN P/T. Call on 4/6/15. Sd/- 6/3. 4-6-15 Complainant-BSK For Obj. to B report. Complainant absent. For Obj. to B report, By 9/11. Sd/-. 4/6. 9-11-15 Obj to B-report. Complainant absent. Complainant counsel Absent. Heard, perused & Satisfied. B report accepted. Sd/- Submitted 9/11/15 Received appeal intimation

From the XII Addl. Dist. Court, Belagavi Sitting at Gokak for calling the records In PC.No.188/2012 for reference in C.R.P.No.306/2016.

                  Submitted for orders.     Submit.
                                            Sd/-
                                            18/2/17"

4. On a perusal at the order sheet appended to the

petition, it becomes clear that the petitioner-complainant

was not even notified when the 'B' report filed by the Police

and accepted by the Court, which is a total procedural

infirmity as held by this Court in case of Dr.Ravishankar vs.

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

KAR 1725 is as follows:

"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 Hon' ble Apex Court in a decision reported in between Abhinandan Jha v. Dinesh Mishra [AIR 1968 S.C. 117.] (para 15) and also Full Bench decision of Apex Court in between Kamalapati Trivedi v. State of West Bengal [(1980) 2 SCC

91.].

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 complaint/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.

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."

5. The petitioner challenged the said order before the

revisional Court by filing a revision petition seeking an

opportunity at the hands of the trial Court to file a protest

petition against the B-report. The criminal revision petition

also came to be dismissed on 05.09.2017. It is these orders

that are called in question as quoted herein above. The

order sheet (supra) clearly indicates that the petitioner had

no notice of the B-report being filed and closing of the

proceedings. Therefore, the matter requires reconsideration

by the trial Court.

6. For the aforesaid reasons, the following: