Karnataka High Court

Doodharam vs The State Of Karnataka on 24 May, 2022

Bench: V.Srishananda

                                                  -1-




                                                        CRL.P No. 101214 of 2016




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                BENCH

                              DATED THIS THE 24TH DAY OF MAY, 2022

                                               BEFORE
                             THE HON'BLE MR JUSTICE V.SRISHANANDA
                           CRIMINAL PETITION NO. 101214 OF 2016 (482-)
                      BETWEEN:

                      1.    DOODHARAM
                            S/O PUNAMRAM CHOUDHARY,
                            AGE: 51 YEARS,
                            OCC: BUSINESS,
                            R/O: ULLAGADDI ONI,
                            HUBBALLI.

                      2.    SMT.GEEGIDEVI
                            W/O DOODHARAM CHOUDHARY,
                            AGE: 51 YEARS,
                            OCC: BUSINESS,
                            R/O: ULLAGADDI ONI,
                            HUBBALLI.

                                                                   ...PETITIONERS

                      (BY SRI.MALLIKARJUNSWAMY B HIREMATH .,ADVOCATE)

CHANDRASHEKAR
                      AND:
LAXMAN
KATTIMANI             1.    THE STATE OF KARNATAKA,
                            REPRESENTED BY ITS SPP,
Digitally signed by         HIGH COURT OF KARNATAKA,
CHANDRASHEKAR
LAXMAN                      BENCH AT: DHARWAD.
KATTIMANI

                      2.    SATYAKUMAR
                            CHANDRASHEKHAR AMMINGAD,
                            AGE: 72 YEARS,
                                   -2-




                                         CRL.P No. 101214 of 2016


     OCC: BUSINESS,
     R/O: PLOT NO.G4,
     GROUND FLOOR,
     MADHUBAN APARTMENT,
     J.C. ROAD, HUBBALLI.

                                                   ...RESPONDENTS
(BY SRI.RAMESH CHIGARI, HCGP FOR R1,
SRI.VENKATESH M KHARVI, ADVOCATE FOR R2)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.,   PRAYING   TO   QUASH    THE   ENTIRE   PROCEEDINGS   IN
CRIMINAL CASE NO.413 OF 2016 PENDING BEFORE THE PRINCIPAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI,
DHARWAD FOR OFFENCES PUNISHABLE UNDER SECTION 420, 465,
466, 468, 409 OF INDIAN PENAL CODE BY ALLOWING THIS
PETITION.

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


                             ORDER

1. Heard Sri.Mallikarjunswamy B Hiremath, learned

counsel for the petitioners and Sri.Venkatesh M

Kharvi and learned HCGP.

2. The present petition is filed under Section 482 of

Cr.P.C with the following prayer:

CRL.P No. 101214 of 2016

"To quash the entire proceedings in Criminal Case No.413 of 2016 pending before the Principal Civil Judge and Judicial Magistrate First Class, Hubballi, Dharwad for offences punishable under Section 420, 465, 466, 468, 409 of Indian Penal Code by allowing this petition."

3. Brief acts of the case are as under:

A private complaint came to be filed under Section

200 of Cr.P.C. before the Principal JMFC, Hubballi by

respondent No.2 herein which was referred to

Suburban Police Station, Hubballi. Police thereafter

registered case in Crime No.179/2013 for the

offences punishable under Sections 167, 409, 417,

420, 466, 468 read with Section 34 of IPC.

4. After thorough investigation police filed 'B' report

before the jurisdictional Magistrate. The 'B' report

was resisted by the complainant by filing protest

petition. Thereafter the learned Magistrate recorded

sworn statement of the complainant and proceeded

to pass the order on 01.02.2016, whereby the

cognizance of the offences alleged against the

present petitioners is taken by the learned Magistrate

CRL.P No. 101214 of 2016

and ordered the office to register the case against

the respondent and issued summons against the

accused and also issued summons to the petitioners.

Being aggrieved by the same, the petitioners are

before this Court.

5. Sri.Mallikarjunaswamy B Hiremath, learned counsel

for the petitioners reiterating the grounds urged in

the petition contended that the trial Magistrate has

not properly considered the material on record and

also erred in not properly appreciating the material

on record without following the mandatory procedure

for rejecting the 'B' report, has passed the order on

01.02.2016 and sought for allowing the petition.

6. Per Contra, Sri.Venkatesh M Kharvi learned counsel

for the complainant supported the impurgned order

and also contended that the procedural lapses if any

has not caused any prejudice to the accused, the

same should be ignored and moreover the petitioners

have got the chance to oppose the petition before the

CRL.P No. 101214 of 2016

trial Magistrate and therefore the petition needs to be

dismissed.

7. In reply, Sri.Mallikarjunswamy Hiremath vehemently

contended that procedural lapses would come in the

way of fair trial and in this regard he relied upon a

judgement of this Court reported in 2018 (2) KLJ

140 in the case of Dr.Ravikumar vs. Mrs.K.M.C.

Vasantha and Another, wherein it is held 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 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

CRL.P No. 101214 of 2016

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.

CRL.P No. 101214 of 2016

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."

CRL.P No. 101214 of 2016

8. This Court perused the material on record including

the impugned order in the light of the rival

contentions of the parties.

9. Admittedly, the police after thorough investigation

filed 'B' report which was resisted by respondent

No.2 by filing a protest petition and thereafter the

learned Magistrate proceeded to record the sworn

statement of the complainant. Subsequent thereto he

was required to follow the procedure as is

contemplated under Sections 202 and 204 of Cr.P.C.

10. As could be seen from the impugned order, in the