Remanded

Jakka Vinod Kumar Reddy v. State of Karnataka

Karnataka HC27 Jun 2023WP/10829/2023

Case brief

AI extract

What is this about?

High Court quashed the order accepting the 'B' report and closing the case, holding the Magistrate erred in rejecting the report without following the prescribed procedure outlined in Dr. Ravikumar case. Matter remitted for fresh consideration.

What did the court decide?

Quashing of order dated 15-05-2023; remittal to Magistrate to pass appropriate orders after hearing the petitioner within four weeks.

Jakka Vinod Kumar Reddy Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 10829 OF 2023 (GM-RES)

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BETWEEN:

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JAKKA VINOD KUMAR REDDY AGED ABOUT 51 YEARS, S/O LATE JAKKA NARASIMHA REDDY, PRESENTLY RESIDING AT ZERENE VILLAGE, HOUSE NO-63/116, PHUTTAMONTHON, SAI-3 ROAD BANGKOK, THAILAND-10160 REPRESENTED BY HIS POWER OF ATTORNEY MR.JAKKA KIRAN REDDY, AGED ABOUT 45 YEARS.

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…PETITIONER

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(BY SRI. A MAHESH CHOWDHARY, ADVOCATE)

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

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AND:

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STATE OF KARNATAKA REPRESENTED BY MR. S. SRINIVAS INVESTIGATION OFFICER IN CRIME NO-84/2022 SUB-INSPECTOR OF POLICE WHITEFIELD POLICE STATION BENGALURU – 560 066.

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…RESPONDENT

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(BY SRI MAHESH SHETTY, HCGP)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE ENTIRE RECORDS BEFORE THE COURT OF THE ADDL CHIEF JUDICIAL MAGISTRATE BENGALURU RURAL DIST BENGALURU IN CRIME NO. 84/2022; CALL FOR THE CASE DIARY OF CRIME NO. 84/2022 AND ALL DOCUMENTS COLLECTED DURING THE COURSE OF THE INVESTIGATION BY HIM WHICH ARE IN THE CUSTODY OF THE RESPONDENT I.E MR. S SRINIVAS INVESTIGATION OFFICER IN CRIME NO. 84/2022 WHITE FIELD POLICE STATION BENGALURU AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Sri A. Mahesh Chowdhary, learned counsel appearing for petitioner and Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent.

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The petitioner is before this Court seeking a slew of prayers, but would keep all the prayers open and restrict his submission to the manner in which the ‘B’ report is dealt with by the concerned Court.

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Petitioner is a complainant in Crime No.84 of 2022 registered for offences punishable under Sections 108A, 387, 511, 115, 506, 120B of the IPC. Registration of the crime had

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lead the accused to this Court in Crl.P.No.3559 of 2022. This Court, by its order dated 03-09-2022 rejected the criminal petition holding that the facts obtaining in the case are shrouded with seriously disputed questions of facts. Therefore, the Court would not interfere in exercise of its jurisdiction under Section 482 of the Cr.P.C. This is called in question by the petitioner in an appeal before the Apex Court. The Apex Court refuses to stay the further proceedings. Therefore, further investigation was taken up by the Investigating Officer, who then files a ‘B’ report before the concerned Court.

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On the filing of the ‘B’ report, the concerned Court issues notice to the petitioner and the petitioner files his protest petition before the concerned Court. On the protest petition, orders are passed on the ‘B’ report on 15-05-2023. The order though is at great length, what is necessary to be noticed is, up to 10 paragraphs are the facts narrated with regard to the pleadings and the contents of the ‘B’ report. The consideration in the case at hand by the learned Judge is at paragraph 11 of the order, which reads as follows:

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“11. In this case, the counsel for the complainant argued that, there is sufficient documents to show that, there is a criminal conspiracy by the accused persons to eliminates the complainant through Hawala Agents by giving supari and the accused persons have involved in the said offence. A careful perusal of the written submission and the documents which are submitted by the counsel for the complainant are prima-facily discloses that, there is a family dispute in between the complainant and accused No. 1 and also discloses that, the accused persons has filed Civil suits in O.S.No.1648/2019 and O.S.No.499/2015. In this case, a careful perusal of the facts and documents, it is the case of the complainant that, the counsel for the accused No.1 i.e., R. Mohan and T.Sriram Nayak have revealed the Criminal conspiracy of the accused persons in eliminating the complainant by giving Supari to the Hawala Agents and also stated that, the accused No.2 is involved in the criminal conspiracy and helped the accused No. 1 in eliminating the complainant, but in this case the complainant has not at all produced any relevant documents to show that, the accused No. 1 and 2 have met Hawala Agents at Chikpet and handed over Rs.25,00,000/- as advance to eliminate the complainant. Further, from the available documents, it discloses that the Complainant has not at all produced the documents like GPA., SPA and MOU., prepared by Sriram Nayak and R. Mohan, as alleged by the complainant. The complainant in his submission stated that, the SPA.. GPA., and MOU., which were prepared by Sriram Nayak, were sent through Watts APP to the complainant, but they were not produced before the Court. The I.O., who has conducted the investigation has called the witnesses and recorded the statements of Advocates that, who gave NOC., to the accused No.1. They revealed what are the criminal conspiracy, but their evidence is not enough to take cognizance against the accused persons. The 1.0. has made all attempts to know the truth and investigated the matter in detail and did not found any commitment of offence as alleged by the complainant. In this case, on the basis of Watts APP messages, the Court cannot take cognizance without proper evidence and documents. In this case, from the available documents, this Court come to the conclusion that, without proper evidence and documents as alleged

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by the complainant, this Court is unable to take cognizance against the accused persons, as alleged in the complaint. The B report has been submitted by the I.O., is in detail after full fledged investigation. The complainant or his advocates have not at all produced documents and relevant evidence before the I.O., and also before the Court. In the absence of material evidence, the Court cannot take cognizance against the accused persons. In view of above discussion, this Court answer point No.1 in the NEGATIVE.”

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(Emphasis added)

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A perusal at paragraph 11 of the order which forms the order of acceptance of ‘B’ report and closing the case against the respondent/accused would run counter to the finding rendered by this Court. It is not that the findings rendered by this Court would be final for consideration of the ‘B’ report filed before the concerned Court, but the learned Magistrate ought to have taken note of the facts that are narrated in the criminal petition as well as the protest petition filed by the complainant and then pass appropriate order. Those bear no consideration in the case at hand.

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Learned counsel for petitioner would take this Court through the documents appended to the petition to demonstrate that the Court records something contrary to the

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finding given by the Investigating Officer in the ‘B’ report itself. Therefore, on all these grounds he would seek that the matter be reconsidered at the hands of the concerned Court, as it bears no application of mind to the contentions raised by the petitioner in the protest petition and the findings rendered by this Court, though they were prima facie, in the aforesaid criminal petition.

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Learned High Court Government Pleader though would seek to defend the action of the concerned Court in closing the proceedings, but does not dispute the fact that the concerned Court does not even look into the order passed by this Court in Crl.P.No.3559 of 2022 while closing the proceedings recording no reasons.

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On a perusal of the order and the aforesaid facts what would unmistakably emerge is that the concerned Court would have to reconsider the ‘B’ report in the light of the observations made in the course of the order and then pass appropriate order, in accordance with law.

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It would become necessary to direct the learned Magistrate while reconsidering the ‘B’ report shall bear in mind the contention advanced by the complainant in the protest petition, contents of the ‘B’ report and also the law laid down by a co-ordinate Bench of this Court in the case of DR.

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RAVIKUMAR VS. MRS. K.M.C.VASANTHA AND ANOTHER reported in ILR 2018 Kar 1725 . The co-ordinate Bench issues certain options by way of guidelines to be followed by the concerned Court while considering a ‘B’ report and a protest petition filed before it. The co-ordinate Bench has held 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 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

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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 AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal (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 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

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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 complainant/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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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.

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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.

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But, none of these procedures have been followed by the learned Magistrate. On the other hand, as could be seen from the records, the learned Magistrate even without rejecting the 'B' Summary report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart.

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6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the learned Magistrate has committed a serious error in not passing any orders on the 'B' Summary Report before taking cognizance on the basis of the Protest Petition.

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7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the court. The Magistrate has to explore all the options as noted above in accordance with law at right stages, which has not been done in this particular case. The learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the 'B' Summary Report, which is not proper and correct. He has to pass orders on the 'B' Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment.”

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(Emphasis supplied)

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