Karnataka High Court

Sri.B.D. Ravi vs State Of Karnataka on 1 March, 2024

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                       CRL.P No. 6029 of 2023




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 1ST DAY OF MARCH, 2024

                                          BEFORE
                      THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                          CRIMINAL PETITION NO. 6029 OF 2023
                BETWEEN:

                1.    SRI.B.D. RAVI,
                      SON OF B.E. DEVANNA GOWDA,
                      AGED ABOUT 60 YEARS.

                2.    SRI. GOKUL B.R.,
                      SON OF B.D. RAVI,
                      AGED ABOUT 28 YEARS,

                      BOTH PETITIONER NO.1 AND 2 ARE
                      RESIDING AT BELAGODU VILLAGE,
                      'B' HOSAHALLI POST, BANAKAL HOBLI,
                      MUDIGERE TALUK,
                      CHIKKAMAGALURU- 577 113.
                                                               ...PETITIONERS
Digitally       (BY SRI. SANDESH J CHOUTA, SENIOR COUNSEL FOR
signed by V
KRISHNA             SRI. ROHAN HOSMATH, ADVOCATE)
Location:
High Court of   AND:
Karnataka
                1.    STATE OF KARNATAKA
                      BANAKAL POLICE STATION
                      KARNATAKA STATE,
                      REP. BY ITS PUBLIC PROSECUTOR,
                      AMBEDKAR VEEDHI,
                      HIGH COURT OF KARNATAKA,
                      BENGALURU- 560 001.
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                                          NC: 2024:KHC:8742
                                     CRL.P No. 6029 of 2023




2.   SRI. B.K. ARUNA,
     SON OF BJ KRISHNE GOWDA,
     AGED ABOUT 50 YEARS
     RESIDING AT BELAGODU VILLAGE,
     'B' HOSAHALLI POST, BANAKAL HOBLI,
     MUDIGERE TALUK,
     CHIKKAMAGALURU - 577 113.
                                            ...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1;
    R2 IS SERVED AND UNREPRESENTED)

      THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
QUASH THE FIR IN CR.NO.60/2015 BANAKAL POLICE STATION
(ANNEXURE-A) AGAINST THE PETITIONERS REGISTERED BY
BANAKAL POLICE STATION RESPONDENT NO.2 FOR OFFENCES
P/U/S 323, 341, 448 AND 504 R/W 34 OF THE IPC, 1860 AND
QUASH THE PROCEEDINGS PENDING BEFORE THE COURT OF
ADDL. CITY JUDGE AND JMFC, MUDIGERE (ANNEXURE-B).

      THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

                         ORDER

The petitioners who are accused Nos.1 and 2 have

approached this Court under Section 482 of Cr.P.C, with a

prayer to quash the entire proceedings in

C.C.No.653/2023 pending before the Court of Addl. Civil

Judge & JMFC, Mudigere arising out of Crime No.60/2015

registered by Banakal Police Station for the offences

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punishable under Sections 448, 341, 504, 323, R/w 34 of

IPC.

2. Heard learned Senior Counsel for the petitioner

and learned HCGP for respondent - State.

3. Respondent No.2, who is served in the matter

has remained unrepresented.

4. Respondent No.2 - defacto complainant had

filed a complaint before the Banakal Police Station, which

had resulted in registering FIR in Crime No.60/2015

against the petitioners for the offence punishable under

Sections 323, 341, 448, 504 R/w 34 of IPC. The police,

after investigation of the case had filed a 'B' report in the

said case on 20.02.2016. Respondent No.2- defacto

complainant had filed objection to said 'B' report on

28.12.2016 before the Trial Court. The Trial Court vide

order dated 09.03.2023 rejected 'B' final report filed by

the Police and took cognizance of the alleged offences

against the accused and thereafter posted the matter for

examination of complainant and his witnesses.

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Subsequently by order dated 23.05.2023, the Trial Court

has directed to register criminal case against accused

Nos.1 and 2 for the alleged offences and issued summons

to them. The case was thereafter numbered as

C.C.No.653/2023. Being aggrieved by the same, the

petitioners who are accused Nos.1 and 2 before the Trial

Court are before this Court.

5. Learned Senior Counsel for the petitioners

submits that, respondent No.2 - complainant has filed

objection to 'B' report which does not comply requirements

of Section 2(d) of Cr.P.C,. Therefore, in view of the

judgment of this Court in the case of BASAPPA V. STATE

OF KARNATAKA - ILR 1987 KAR 994, learned Magistrate

was not justified in taking cognizance of the alleged

offences against the petitioners. He submits that, the

statement of complainant as well as witnesses was

recorded even prior to passing any order on final 'B' report

filed by the Police. He also submits that, after 'B' report

was rejected, the sworn statement of complainant and his

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witnesses has not been recorded. On the basis of

statement which was recorded by the learned Magistrate

prior to passing any order on the final 'B' report filed by

the Police, the Trial Court has proceeded to register a

criminal case against the petitioners and issued summons

to them. He submits that this procedure followed by the

learned Magistrate is contrary to direction issued by this

Court in the case of DR. RAVIKUMAR V. MRS.K.M.C.

VASANTHA AND ANOTHER - ILR 2018 KAR 1725.

6. The police after investigation in the present

case had filed 'B' report on 20.02.2016. After service of

notice about the filing of 'B' report, respondent No.2 -

defacto complainant had filed objection to the 'B' report on

28.12.2016. A perusal of objection which is filed by

respondent No.2 - complainant to the 'B' report would go

to show that, the same is not in the form of a compliant

and it also does not comply with requirements of Section

2(d) of Cr.P.C,

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7. This Court in the case of BASAPPA (supra) has

held that in the absence of complaint or a protest memo

which is in the form of a complaint as defined under

Section 2(d) of Cr.P.C, the Court cannot take cognizance

of the alleged offences for which the Police after

investigation have filed 'B' report.

8. The order sheet maintained by the Trial Court in

Crime No.60/2015 would reflect that after filing of 'B'

report by the Police, the complainant was examined as

CW.1 on 28.02.2020 and his witness was examined on

23.02.2021. The Trial Court has passed order on final 'B'

report filed by the Police only on 09.03.2023 and on the

said date, final 'B' report was rejected and cognizance for

the alleged offences was taken. Though the matter was

posted for examination of the complainant and his

witnesses on 27.03.2023, the complainant and his

witnesses were not examined thereafter and the Trial

Court passed order dated 23.05.2023 directing to register

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a criminal case against the accused for the alleged

offences and also to issue summons to them.

9. The coordinate bench of this Court in

DR.RAVIKUMAR' case (supra) in paragraph No.5 had

issued certain directions to be complied by the learned

Magistrate in a case where 'B' report is filed and the

complainant has thereafter filed objection or protest memo

opposing 'B' report and has prayed to take action against

the accused. The same reads 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

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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 vs. DINESH MISHRA (para

15) and also Full Bench decision of Apex Court in between KAMALAPATI TRIVEDI vs. 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.

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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

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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".

10. In the case on hand, the complainant as well as

his witness were examined as CWs.1 and 2 even before

any orders were passed on final 'B' report filed by the

Police. It is only after the statement of CWs.1 and 2 was

recorded by the learned Magistrate, the order was passed

by him rejecting 'B' report. After rejecting final 'B' report,

the Magistrate has not recorded sworn statement of

complainant or his witnesses and on the other hand, the

statement of CWs.1 and 2 which were recorded prior to

passing any order on final 'B' report submitted by the

Police, the Trial Court has proceeded to register a case

against the accused and issued summons to them. The