Karnataka High Court
Professor Dr. Dhirendra V. Kubair vs State Of Karnataka on 8 December, 2023
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NC: 2023:KHC:44778
WP No. 25651 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 25651 OF 2023 (GM-RES)
BETWEEN:
PROFESSOR DR. DHIRENDRA V. KUBAIR
S/O. LATE PROFESSOR DR. V.G. KUBAIR,
AGED ABOUT 51 YEARS,
81/1, "PROFESSOR V.G. KUBAIR'S APARTMENTS",
4TH MAIN ROAD,
MALLESHWARAM,
BENGALURU-560 003,
CELLULAR PH 8277644621,
EMAIL [email protected]
...PETITIONER
(BY PROF. DR. DHIRENDRA V. KUBAIR, PARTY-IN-PERSON)
AND:
STATE OF KARNATAKA
BY MALLESHWARAM POLICE STATION,
BENGALURU-560 003,
Digitally REPRESENTED BY
signed by SPECIAL PUBLIC PROSECUTOR (SPP),
SUMA HIGH COURT BUILDING,
Location: BENGALURU-560 001.
HIGH
COURT OF ...RESPONDENT
KARNATAKA (BY SRI. RAJAT SUBRAMANYAM, HIGH COURT GOVERNMENT
PLEADER)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE
CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO ISSUE A WRIT
OF CERTIORARIFIED - MANDAMUS OR ANY OTHER WRIT, REJECTING
THE B-SUMMARY-REPORT (PRODUCED AS ANNEXURE-F DATED
10.12.2020) PENDING CONSIDERATION IN THE 32ND ADDL. CHIEF
METROPOLITAN MAGISTRATE COURT IN BENGALURU KARNATAKA,
ARISING OUT OF THE FIR 36/2020 (PRODUCED AS ANNEXURE-E
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WP No. 25651 of 2023
DATED 07.06.2020) AND DIRECT THE LEARNED 32ND ADDL CHIEF
METROPOLITAN MAGISTRATE, TO SUBSEQUENTLY PROCEED TO
TAKE CONGNIZANCE OF THE PROTEST-PETITION AND THEN RECORD
SWORN-STATEMENT OF THE PETITIONER/COMPLAINANT AND/OR
COMPLAINANT - WITNESS/ES, IN ACCORDANCE WITH THE
PROCEDURE LAID DOWN BY THIS HONBLE COURT IN DR.
RAVIKUMAR V. MRS. VASANTHA AND ANR ILR 2018 KAR 1725 AND
SEVERAL OTHER STARE DECISIS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has sought for a writ in the nature of
mandamus directing the XXXII Additional Chief Metropolitan
Magistrate, Bengaluru (henceforth referred to as 'Trial Court')
to comply with the procedure prescribed in a judgment of this
Court in the case of Dr. Ravikumar vs. Mrs. K.M.C.
Vasantha and another [ILR 2018 KAR 1725] while
considering the protest petition filed by him in Crime
No.36/2020 registered by the respondent for the offences
punishable under Sections 323, 324 read with Section 34 of
IPC.
2. Based on an information furnished by the
petitioner/complainant, the respondent registered Crime
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No.36/2020 for the offences punishable under Sections 323,
324 read with Section 34 of IPC. The respondent after
conducting an investigation filed a 'B' report on 18.12.2020. A
notice of the 'B' report was served on the petitioner by the
respondent as also by the Trial Court. The petitioner entered
appearance and filed a protest petition against acceptance of
the 'B' report. The Trial Court without rejecting 'B' report
proceeded to record the evidence of the petitioner and his
witnesses.
3. Being aggrieved by the procedure so adopted by
the Trial Court, the petitioner/complainant is before this Court
seeking for appropriate directions.
4. The petitioner/party-in-person contends that the
Trial Court was bound to consider the acceptance or rejection of
the 'B' report based on the assertions made in the protest
petition filed by him and only then it could proceed to record
the sworn statement of the petitioner and other witnesses. He
submits that the procedure adopted by the Trial Court in
recording the statement of witnesses even before rejecting the
'B' report is an incorrect procedure which is susceptible to
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challenge before the higher Court and the prosecution could be
terminated. He therefore, submitted that the Trial Court be
directed to comply with the procedure prescribed by a
Coordinate Bench of this Court in the case of Dr. Ravikumar,
supra.
5. Per contra, the learned High Court Government
Pleader for the respondent submitted that the Trial Court by
recording sworn statement of the petitioner had impliedly
rejected the 'B' report and therefore, there is no need to issue
any direction to comply with the judgment referred above.
6. I have considered the submissions made by the
petitioner/party-in-person as well as the learned High Court
Government Pleader for the respondent.
7. When once a 'B' report is filed by the respondent, it
is incumbent upon the Trial Court to issue notice to the
complainant before accepting 'B' report. Once that is done, the
petitioner may file a protest petition against the acceptance of
the 'B' report. The Trial Court is then bound to consider the
acceptance of the 'B' report in view of the protest petition filed
and the assertions made in the protest petition. It is only
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thereafter, the Trial Court could consider taking cognizance of
the offence by recording sworn statement of the petitioner and
other witnesses and either take cognizance or overrule the
objections and close it. This is also the law declared by a slew
of judgments of the Coordinate bench of this Court in the case
of Sri. Mathew Alex vs. State of Karnataka and another
(Crl.P.No.4000/2013), Bhujabali Pasane vs. The State of
Karnataka and another (Crl.P.No.200310/2021), Nabhagana
Pany vs. The State of Karnataka (Crl.P.No.101124/2018),
Doodharam and another vs. The State of Karnataka and
another (Crl.P.No.101214/2016) and Mahesh K @
Maheshwaran K vs. Chief Secretary and others
(W.P.No.18820/2021), which all followed the judgment of the
Coordinate Bench of this Court in the case of Dr. Ravikumar,
supra. Therefore, the procedure adopted by the Trial Court in
recording sworn statement of the petitioner without considering
'B' report is improper and deserves to be corrected.
8. Consequently, this petition is allowed. The XXXII
Additional Chief Metropolitan Magistrate, Bengaluru, is directed
to comply with the procedure prescribed as noticed by this
Court in the judgments referred above. The Trial Court may
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consider the 'B' report in accordance with law and thereafter
proceed in accordance with law and this shall be complied
within a period of three months from today. It is needless to
mention that the petitioner shall cooperate with the Trial Court
and record his sworn statement and the sworn statement of
any other witnesses that he intends to examine before the Trial
Court.
Sd/-
JUDGE
PMR
