Partly allowed

Sri Deepu S N v. State of Karnataka

Karnataka HC5 Jun 2023CRL.P/583/2023

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition filed under Section 482 Cr.P.C. to quash the order of a Magistrate taking cognizance despite a rejected Police B Report. The Court held the procedure violated principles laid down in prior judgments and remitted the matter to the Magistrate for reversal of cognizance and adherence to statutory procedure.

What did the court decide?

Petition allowed in part; order of Magistrate taking cognizance dated 18.08.2022 quashed; matter remitted to Magistrate.

Sri Deepu S N Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO.583 OF 2023

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BETWEEN:

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SRI DEEPU S N S/O SHYAM A NEMIKAL AGED 33 YEARS, R/AT NO.24/51, 10TH MAIN, 1ST CROSS, NEAR ESI HOSPITAL SHIVANAGARA, RAJAJINAGARA BENGALURU-560010.

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…PETITIONER

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(BY SRI. RAKSHITH K.S., ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY WOMENS PS DAVANAGERE REPRESENTED BY PUBLIC PROSEUCTOR HIGH COURT OF KARNATAKA, BENGLAURU-560066. 2. SMT.MAMATHASHREE J W/O DEEPU S N AGED 28 YEARS, R/AT C/O SHIVAMURTHY K DOOR NO.1869/48, 2ND CROSS, 7TH MAIN, VIVEKANANDA EXTENSION, DAVANAGERE-577 003.

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…RESPONDENTS

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(BY SMT. K.P. YASHODHA, HCGP FOR R1; R2 SERVED)

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO A. QUASH THE FIR AND INFORMATION DATED 17.07.2019, PREFERRED BY THE RESPONDENT NO.2 AND REGISTERED BY THE RESPONDENT NO.1 POLICE BEARING CR.NO.65/2019 OF WOMENs POLICE STATION, DAVANAGERE ON THE FILE OF 2nd ADDITIONAL CIVIL JUDGE (Sr.Dn.) AT DAVANGERE FOR THE OFFENCE P/U/S.114,498-A,323,504,506 R/W SEC.34 OF IPC AND SEC.3 AND 4 OF DP ACT 1961 WHEREIN THE PETITIONER HEREIN IS ARRAYED AS ACCUSED NO.1 VIDE ANNEXURE A AND B; AND ETC.

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THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner is before this Court calling in question the order

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dated 18^th August, 2022, passed by the learned Magistrate, rejecting the ‘B’ Report and taking cognizance and registering CC No.2989 of 2022 on the file of II Additional Senior Civil Judge and JMFC, Davanagere for the offences punishable under Sections 498(A), 323, 504, 506, 114 read with Section 34 of

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the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act, 1961.

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Heard learned counsel for the petitioner and learned High Court Government Pleader for respondent No.1.

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Facts in brief, germane are as follows:

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The petitioner is the husband of the respondent No.2complainant. The two get married on 15^th December, 2016 and on their relationship floundering, several proceedings, the wife seeks to initiate against the husband and his family members. A crime comes to be registered in Crime No.65 of 2019 for the aforequoted offences. The police, after investigation, seek to file ‘B’ Summary Report before the concerned court. On the filing of the ‘B’ Report, the concerned court notifies the complainant and the complainant appears and files a protest petition on the ‘B’ Report. The learned Magistrate, by the impugned order, rejects the ‘B’ Report and takes cognizance and issues summons to the petitioner. It is therefore, the petitioner is before this Court in the subject petition.

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The learned counsel appearing for the petitioner would

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seek to take this Court to the documents appended to the petition with particular reference to the objections filed by the respondent-complainant before the Family Court in proceedings of divorce which would clearly indicate that the petitioner himself was beaten up by the members of family of the respondent No.2-wife and not the other way round. It is his

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submission that the harassment has been against the husband

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and not any harassment to the wife by the husband.

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Learned High Court Government Pleader refutes the submissions of the learned counsel for the petitioner.

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Respondent No.2 though served, remain

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unrepresented.

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I have given my anxious consideration to the submissions of the respective learned counsel and have perused the record.

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The afore-narrated facts are not in dispute. The issue, for the present, lies in a narrow compass as what drives the petitioner to this Court is rejection of the ‘B’ Report and taking cognizance. The police, after investigation in Crime No.65 of 2019, filed ‘B’ Report and the respondent-complainant filed the protest petition. On the said ‘B’ Report and the protest petition, the concerned court passes the following order:

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" The complainant has filed present complaint against the accused No.1 to 4 for the alleged offences punishable under section 498(A), 323, 504, 506, 114 read with Section 34 of IPC and Section 3 and 4 of D.P. Act.

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After the complaint was filed, the same was referred to the Women Police Station, Davanagere, who have filed 'B' final report. Further, in the 'B' Report, it is stated that only to settle the case against the accused persons who are her husband, mother-in-law and brother-in-laws, a false complaint is filed. Hence, it is prayed to accept 'B' Final report. After the 'B' report was filed the complainant acting as a party in person has filed objections to 'B' objection 'B' report.

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I have perused the 'B' report and objections to the same. The complainant along with the complaint has filed various documents which shows that she is married to the accused No.1. There is material to take cognizance against the accused No.2 to 4 for the offence punishable under Section 498(A), 323, 504, 506, 114 read with Section 34 of IPC and Section 3 and 4 of D.P. Act. The reasons stated by the investigating officer in his 'B' report are not satisfactory and for that reason it seems necessary that the complainant be permitted to examine witnesses on her side in order to proceed further. Hence, I proceed to pass following:

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ORDER

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The 'B' report submitted by the I.O. is rejected.

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The cognizance taken against the accused No.1 for the offences punishable under Section 498(A), 323, 504, 506, 114 read with Section 34

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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of Indian Penal Code and Section 3 and 4 of D.P. Act.

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Register C.C. case and issue summons to the

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accused. "

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The reason for rejection of the ‘B’ report is that the complainant along with complaint has produced various documents, which show that the complainant is married to the petitioner. There was no doubt about the said fact even to make a mention of it. There is no reason indicated for rejection of the ‘B’ Report and taking congnizance of the offence. The afore-quoted order runs foul to the judgment of the Coordinate Bench of this Court which has validated the principles of rejection of ‘B’ Report and taking cognizance in the case of DR. RAVIKUMAR v. MRS K M C VASANTHA reported in ILR 2018 KAR 1725, wherein the co-ordinate Bench holds as follows:

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" 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

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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that the investigation has not been conducted properly, the Court has got some options to be followed, which are:

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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.)

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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.

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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

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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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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iv) 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.

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v) 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.

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vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused,

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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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."

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(Emphasis supplied)

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In the light of the judgment of the Co-ordinate Bench, the procedure stipulated for the concerned court to follow once the ‘B’ report is filed, is completely violated in the case at hand. Therefore, on this solitary ground of rejection of ‘B’ Report and taking of cognizance is contrary to law, the order dated 18^th August, 2022 taking cognizance is rendered unsustainable. The unsustainability would lead to obliteration. But the obliteration would not lead to complete closure of the proceedings against the petitioner.

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For the aforesaid reasons, the following:

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O R D E R

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(i) Petition is allowed in part;

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(ii) Order of the Magistrate taking cognizance dated 18^th August, 2022 stands quashed;

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NC: 2023:KHC:19060 CRL.P No.583 of 2023

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(iii) The matter is remitted back to the hands of the learned Magistrate to pass appropriate orders upon the ‘B’ Report bearing in mind the guidelines laid down by this Court in the case of K.S. RAVIKUMAR (supra) .

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Sd/JUDGE

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LNN List No.: 1 Sl No.: 122

Sri Deepu S N v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Deepu S N v. State of Karnataka

Case brief

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