1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4003/2013 BETWEEN: SAMUEL SAMUEL S/O.C.SAMUEL AGED ABOUT 65 YEARS R/AT MADAYIL HOUSE KADAMPANADU POST KERALA-689 529 PETITIONER (BY SRI B.S.CHANDAN FOR SRI DILRAJ ROHIT SEQIEORA, ADVOCATES) AND: 1. THE STATE REP. THROUGH THE INSPECTOR OF POLICE NANDAGUDI POLICE STATION REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-560 001 2. SRI JOSEPH CHACKO AGED ABOUT 52 YEARS S/O. LATE P.J.CHACKO R/AT NO.177/B, PARK AVENUE BABUSA PALYA KALYANA NAGAR BANGALORE-560 043 RESPONDENTS (BY SRI NASRULLA KHAN, HCGP FOR R1; R2 IS SERVED AND UNREPRESENTED) 2 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE PROCEEDINGS PENDING IN PCR.NO.54/2010, FIR.NO.140/2011 AND CC.NO.195/2013 FILED BY RESPONDENT NO.2 PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, JUNIOR DIVISION & JMFC AT HOSKOTE AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], 114 READ WITH SECTION 149 OF [ACT] AND ALL FURTHER PROCEEDINGS AGAINST THE PETITIONER. THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned Counsel for the petitioner and the learned High Court Government Pleader for respondent No.1-[ENTITY].
2. The petitioner has sought to quash the proceedings in [CASE NUMBER], [CASE NUMBER] and [CASE NUMBER] filed by respondent No.2 pending on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Hoskote for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT].
3. The undisputed facts are that respondent No.2- complainant filed a private complaint against the petitioner under [SECTION] of [ACT] Learned Magistrate referred the complaint for investigation under [SECTION] of [ACT] The Investigating Officer submitted a 'B' summary report. Thereafter, the complainant filed a protest petition and produced necessary documents. After recording the sworn statement of the complainant, the learned Magistrate issued summons to the petitioner. The impugned order reads as under:
"Complainant has filed this complaint against the accused persons for the offence punishable U/[SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION]/[SECTION] of [ACT].
It is stated by the complainant that the land bearing Sy.No.169 and 160 of Doddanallurahalli in Jadigenahalli Hobli, Hosakote Taluk originally belongs to Smt.Sarojini chaco W/o late [ENTITY] who is none other than the mother of the complainant. After her demise, the revenue entries changed in the name of the complainant. According to the complainant when himself and his staffs were doing fabrication work at Sy.No,160 & 169, the accused persons came to the spot and picked up quarrel with the complainant and all the accused persons illegally and unlawfully with an intention to commit offence have criminally intimidated the complainant with dire consequences. Further the complainant stated that the accused No.1 holding the neck of the complainant, accused No.2 tried to squeeze his testicles and broken his right hand title finger and thereby attempted to murder the complainant and other accused persons voluntarily caused hurt to complainant with their hands and kicked him with their legs.
This matter was referred to CPI, Nandagudi police station. After investigation the police have filed "B" report which was protested by the complainant by filing protested petition. Sworn statement recorded as per PW1 and the complainant has placed on record Ex.P.1 and the complainant has placed on record Ex.P.1 to Ex.P.3. They have also placed on record medical certificates and wound certificate issued by Hoskote Hospital. On perusal of materials placed on record it prima facie establishes the case which is fit for trials. Hence the following order is passed.
Order Office is directed to register the case in Register No.III and issue summons to the accused No.10 as he was the abettor for abetment of the offence committed by the accused No.1 to9 punishable under [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT] if P.F is paid and list of witnesses furnished.
R/by 19-01-2013."
4. The above order, on the face of it, is opposed to the procedure laid down by the Hon'ble Supreme Court in the case of Kamalapati Trivedi v. [ENTITY] of W.B. reported in (1980)2 SCC 91, which is followed by this Court in the case of [PRECEDENT], wherein it is held as under:
"5. xxxxxxxxxxxxxxxx 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/[SECTION] of [ACT], 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] of [ACT], 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 [PRECEDENT] between [PRECEDENT] (para 15) and also Full Bench decision of Apex Court reported in [PRECEDENT] between [PRECEDENT].
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 [SECTION] of [ACT], 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 [ENTITY]ment and also record the statements of the witnesses if any on the side of the complainant as per the mandate of [SECTION] [ACT]"
5. As the learned Magistrate has failed to follow the procedure as laid down in the above decision, the impugned order passed by the learned Magistrate directing summons to the petitioner cannot be sustained.
Accordingly, the petition is allowed. The matter is remitted to the learned Magistrate to reconsider the 'B' report and proceed in the matter, in the light of the procedure laid down by the Hon'ble Supreme Court in the case of Kamalapati Trivedi v. [ENTITY] of W.B. reported in (1980)2 SCC 91, which is followed by this Court in the case of [PRECEDENT].
JUDGE LB