Karnataka High Court

Rahul Alias Shankar Kallappa Desai vs Sunil Basappa Kone on 27 January, 2025

Author: Ravi V.Hosmani

Bench: Ravi V.Hosmani

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                                                         CRL.RP No. 100098 of 2023




                                 IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                             DATED THIS THE 27TH DAY OF JANUARY, 2025

                                                BEFORE

                              THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

                           CRIMINAL REVISION PETITION NO.100098 OF 2023
                                      [397(CR.PC)/438(BNSS)]

                      BETWEEN:

                      1.    RAHUL @ SHANKAR KALLAPPA DESAI
                            AGE: 29 YEARS,
                            OCC. AGRICULTURE,
                            R/O. KADALAGI,
                            TQ. GADHINGLAJ,
                            MAHARASHTRA STATE-416501.

                      2.    VIJAY BABASHO JADHAV
                            AGE: 31 YEARS,
                            OCC. AGRICULTURE,
                            R/O. KADALAGI,
                            TQ. GADHINGLAJ,
                            MAHARASHTRA STATE-416501.

                      3.    SHANTA MAHADEV CHOUGALA
         Digitally
         signed by
         MANJANNA
                            AGE: 48 YEARS,
MANJANNA E
E        Date:
         2025.01.28
                            OCC. AGRICULTURE AND HOUSEHOLD,
         10:13:49
         +0530
                            R/O. KOCHARI VILLAGE,
                            TQ. HUKKERI,
                            DIST. BELAGAVI-590001.

                      4.    MAHADEV MALLAPPA CHOUGALA
                            AGE: 56 YEARS,
                            OCC. AGRICULTURE,
                            R/O. KOCHARI VILLAGE,
                            TQ. HUKKERI,
                            DIST. BELAGAVI-590001.

                                                                     ... PETITIONERS

                      (BY SRI SRINIVAS B. NAIK, ADVOCATE)
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                                    CRL.RP No. 100098 of 2023




AND:

1.   SUNIL BASAPPA KONE
     AGE: 29 YEARS,
     OCC. AGRICULTURE,
     R/O. KOCHARI VILLAGE,
     TQ. HUKKERI,
     DIST. BELAGAVI-590001.

2.   THE STATE OF KARNATAKA
     REPRESENTED BY SPP,
     HIGH COURT OF KARNATAKA
     DHARWAD BENCH,
     THROUGH SANKESHWAR P.S.,
     DISTRICT. BELAGAVI-580011.

                                                ... RESPONDENTS

(BY SRI PRASHANT MATAPATI, ADVOCATE FOR R1;
    SMT.GIRIJA S. HIREMATH, HCGP FOR R2)

       THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397(1)
R/W. 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND
ORDER    DATED   04.01.2023   PASSED   IN   CRIMINAL     REVISION
PETITION NO.482/2019 ON THE FILE OF VII ADDITIONAL SESSIONS
JUDGE, BELAGAVI, SITTING AT CHIKKODI, IN THE INTEREST OF
JUSTICE AND EQUITY.


       THIS PETITION, COMING ON FOR ADMISSION, ORDER WAS
MADE THEREIN AS UNDER:
                         ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)

Challenging order dated 04.01.2023 passed by VII

Additional Session Judge, Belagavi sitting at Chikkodi in

Crl.R.P.no.482/2019, this revision petition is filed by accused

(petitioners).

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2. Sri Srinivas B. Naik, learned counsel for petitioners

submitted that based on complaint filed by respondent no.1

(complainant) against petitioners alleging that they had

assaulted complainant on ground that she was in debt of

Rs.20,000/- to Shanta Chougala and threatened her with dire

consequences. Based on said complaint, Crime no.243/2018

was registered by Sankeshwara Police Station for offences

punishable under Sections 323, 325, 354 (B), 341, 504, 506

read with 34 of Indian Penal Code, 1882 ('IPC' for short).

3. On 26.10.2018, after completion of investigation,

Investigating Officer ('IO' for short) had filed 'B' Report before

Civil Judge and JMFC., Sankeshwar, Belgaum, reporting

complaint was false. In view of same, notice was ordered to

complainant. On 30.03.2019 as notice was served and

complainant was represented. As prayed, matter was

adjourned to 03.08.2019, providing four months time to file

objections to 'B' Report. On 03.08.2019, when case was called

out, complainant was absent and her counsel prayed time for

filing objections. Taking note of fact that no less than four

months time was granted, learned Magistrate rejected prayer

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for time, took objections to 'B' Report as not filed and

proceeded to accept 'B' Report and closing proceedings.

4. On same day, an application was filed for recall of

order accepting 'B' Report and seeking further time to file

objections to it. But, even said application was rejected.

Thereafter, complainant filed Crl.R.P.no.482/2019, but without

stating order against which it was filed. Despite appearance by

petitioners and opposing revision by filing objections, Revisional

Court allowed petition, set-aside order dated 03.08.2019,

restored proceedings before, trial Court and permitted

complainant to file objections. Aggrieved by said order,

petitioners were before this Court.

5. It was submitted, only reason assigned in Revision

was "...Opportunity means number of opportunities but not

quantum of period. ...". According to it, unless there were

compelling circumstances not to adjourn matter to next date,

refusal would amount to denial of opportunity. On said

reasoning, it concluded there was denial of opportunity, set-

aside order and remitted matter back to trial Court. It was

submitted, when complainant had filed application after passing

of order accepting 'B' Report and same was rejected, revision

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petition filed only against original order without questioning

order on application would be untenable. Since order passed by

Revisional Court in either case was contrary to law, learned

counsel prayed for allowing revision petition.

6. On other hand, Prashant Mathapati, learned counsel

for respondent no.1 - complainant opposed revision. It was

submitted, though four months time was granted for filing

objections, on 03.08.2019, complainant could not be present

before Court due to death of relative. Therefore, prayer for

adjournment was made, without proper consideration request

for adjournment was denied and 'B' Report was accepted. It

was further submitted, explaining circumstances, an application

for recalling said order was filed on same day. Without

consideration, same was rejected. Since such application would

not be tenable, revision petition was filed against original order.

Grounds urged themselves disclosed particulars of order

impugned. It was further submitted, thought objections were

filed, said ground was not urged in revision petition. Hence,

impugned order did not warrant interference.

7. Heard learned counsel, perused impugned order and

available material.

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8. This revision petition is by accused (petitioners)

questioning order passed in Crl.R.P.no.482/2019 allowing same

and interfering with order passed by trial Court accepting 'B'

report filed by prosecution on finding falsity of complaint. As

per decision of Hon'ble Supreme Court in case of Amit Kapoor

v. Ramesh Chander and another reported in (2012) 9 SCC

460, scope for interference in revision would be extremely

limited and normally only on questions of law and not finding of

fact.

9. The first ground urged namely, revision petition was

filed without disclosing particulars of impugned order, it is seen,

petitioners herein had filed objections to petition. Firstly on

ground urged herein was not urged before said Court and

Secondly on ground that non-mentioning of order impugned in

prayer had not prejudiced petitioners and they had rightly

understood and contested same against order dated

03.08.2019 accepting 'B' Report.

10. Insofar as next contention that revision was not

tenable without assailing order passed on application, Section

362 of CrPC prohibits filing of any application for

recall/modification or altering judgment. Therefore, application

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filed for recalling would in any case be untenable and likewise,

in case of order passed on such application. Therefore, said

contention would be without merit.

11. Last contention assailing conclusion that order passed

by trial Court suffered from denial of opportunity would require

consideration. Reasoning that opportunity means many

opportunity and not duration of opportunity would be outright

ill-logical and unacceptable. Even reasoning that refusal of

adjournment without compelling reasons would also be ill-

logical. It would not be appropriate to apply same in all cases

and circumstances. This conclusion would require remand of

matter back to Revisional Court. But, a bare perusal of order

passed by trial Court on 03.08.2019, would indicate that 'B'

report was accepted without following proper procedure held

applicable by this Court in Dr.Ravikumar v. K.M.C.

Vasantha, reported in 2017 SCC OnLine Kar 4731, held 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

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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.] (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.

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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

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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."

12. In view of failure to adhere to procedure required by

law by trial Court while passing order accepting 'B' Report, it

would be appropriate to remit matter back to trial Court itself,

by fixing time within which, respondent-complainant may file

objections, and in case of filing thereof or in default, directing

trial Court to follow procedure mentioned hereinabove.

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13. For aforesaid reasons, I pass following:

ORDER

Criminal Revision Petition is allowed in part, impugned order dated 04.01.2023 passed by VII Additional Session Judge, Belagavi sitting at Chikkodi in Crl.R.P.no.482/2019 is modified as above.