Allowed

Professor Dr. Dhirendra v. Kubair v State of Karnataka

Karnataka HC8 Dec 2023WP/25651/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed under Articles 226, 227 of the Constitution and Section 482 CrPC. The Court directed the XXXII Additional Chief Metropolitan Magistrate to comply with the procedure laid down in Dr. Ravikumar v. Mrs. Vasantha (ILR 2018 KAR 1725) and other coordinate bench judgments before taking cognizance of the case.

What did the court decide?

The XXXII Additional Chief Metropolitan Magistrate, Bengaluru is directed to consider the \'B\' report in accordance with law and comply within three months.

Professor Dr. Dhirendra v. Kubair Vs State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - NC: 2023:KHC:44778 WP No. 25651 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 25651 OF 2023 (GM-RES)

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BETWEEN:

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PROFESSOR DR. DHIRENDRA V. KUBAIR S/O. LATE PROFESSOR DR. V.G. KUBAIR, AGED ABOUT 51 YEARS, 81/1, "PROFESSOR V.G. KUBAIR'S APARTMENTS", 4^TH MAIN ROAD, MALLESHWARAM, BENGALURU-560 003, CELLULAR PH 8277644621, EMAIL [email protected]

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…PETITIONER (BY PROF. DR. DHIRENDRA V. KUBAIR, PARTY-IN-PERSON)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY MALLESHWARAM POLICE STATION, BENGALURU-560 003, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR (SPP), HIGH COURT BUILDING, BENGALURU-560 001. …RESPONDENT (BY SRI. RAJAT SUBRAMANYAM, HIGH COURT GOVERNMENT PLEADER)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO ISSUE A WRIT OF CERTIORARIFIED - MANDAMUS OR ANY OTHER WRIT, REJECTING THE B-SUMMARY-REPORT (PRODUCED AS ANNEXURE-F DATED 10.12.2020) PENDING CONSIDERATION IN THE 32^ND ADDL. CHIEF METROPOLITAN MAGISTRATE COURT IN BENGALURU KARNATAKA, ARISING OUT OF THE FIR 36/2020 (PRODUCED AS ANNEXURE-E

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2 - NC: 2023:KHC:44778 WP No. 25651 of 2023

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DATED 07.06.2020) AND DIRECT THE LEARNED 32^ND ADDL CHIEF METROPOLITAN MAGISTRATE, TO SUBSEQUENTLY PROCEED TO TAKE CONGNIZANCE OF THE PROTEST-PETITION AND THEN RECORD SWORN-STATEMENT OF THE PETITIONER/COMPLAINANT AND/OR COMPLAINANT - WITNESS/ES, IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THIS HONBLE COURT IN DR. RAVIKUMAR V. MRS. VASANTHA AND ANR ILR 2018 KAR 1725 AND SEVERAL OTHER STARE DECISIS.

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THIS 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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The petitioner has sought for a writ in the nature of mandamus directing the XXXII Additional Chief Metropolitan Magistrate, Bengaluru (henceforth referred to as 'Trial Court') to comply with the procedure prescribed in a judgment of this Court in the case of Dr. Ravikumar vs. Mrs. K.M.C. Vasantha and another [ILR 2018 KAR 1725] while considering the protest petition filed by him in Crime No.36/2020 registered by the respondent for the offences punishable under Sections 323, 324 read with Section 34 of IPC.

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Based on an information furnished by the petitioner/complainant, the respondent registered Crime

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3 - NC: 2023:KHC:44778 WP No. 25651 of 2023

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No.36/2020 for the offences punishable under Sections 323, 324 read with Section 34 of IPC. The respondent after conducting an investigation filed a 'B' report on 18.12.2020. A notice of the 'B' report was served on the petitioner by the respondent as also by the Trial Court. The petitioner entered appearance and filed a protest petition against acceptance of the 'B' report. The Trial Court without rejecting 'B' report proceeded to record the evidence of the petitioner and his witnesses.

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Being aggrieved by the procedure so adopted by the Trial Court, the petitioner/complainant is before this Court seeking for appropriate directions.

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The petitioner/party-in-person contends that the Trial Court was bound to consider the acceptance or rejection of the 'B' report based on the assertions made in the protest petition filed by him and only then it could proceed to record the sworn statement of the petitioner and other witnesses. He submits that the procedure adopted by the Trial Court in recording the statement of witnesses even before rejecting the 'B' report is an incorrect procedure which is susceptible to

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NC: 2023:KHC:44778 WP No. 25651 of 2023

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challenge before the higher Court and the prosecution could be terminated. He therefore, submitted that the Trial Court be directed to comply with the procedure prescribed by a Coordinate Bench of this Court in the case of Dr. Ravikumar, supra.

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Per contra, the learned High Court Government Pleader for the respondent submitted that the Trial Court by recording sworn statement of the petitioner had impliedly rejected the 'B' report and therefore, there is no need to issue any direction to comply with the judgment referred above.

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I have considered the submissions made by the petitioner/party-in-person as well as the learned High Court Government Pleader for the respondent.

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When once a 'B' report is filed by the respondent, it

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is incumbent upon the Trial Court to issue notice to the complainant before accepting 'B' report. Once that is done, the petitioner may file a protest petition against the acceptance of the 'B' report. The Trial Court is then bound to consider the acceptance of the 'B' report in view of the protest petition filed and the assertions made in the protest petition. It is only

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5 - NC: 2023:KHC:44778 WP No. 25651 of 2023

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thereafter, the Trial Court could consider taking cognizance of the offence by recording sworn statement of the petitioner and other witnesses and either take cognizance or overrule the objections and close it. This is also the law declared by a slew of judgments of the Coordinate bench of this Court in the case of Sri. Mathew Alex vs. State of Karnataka and another (Crl.P.No.4000/2013), Bhujabali Pasane vs. The State of Karnataka and another (Crl.P.No.200310/2021), Nabhagana Pany vs. The State of Karnataka (Crl.P.No.101124/2018), Doodharam and another vs. The State of Karnataka and another (Crl.P.No.101214/2016) and Mahesh K @ Maheshwaran K vs. Chief Secretary and others (W.P.No.18820/2021), which all followed the judgment of the Coordinate Bench of this Court in the case of Dr. Ravikumar, supra. Therefore, the procedure adopted by the Trial Court in recording sworn statement of the petitioner without considering 'B' report is improper and deserves to be corrected.

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Consequently, this petition is allowed . The XXXII Additional Chief Metropolitan Magistrate, Bengaluru, is directed to comply with the procedure prescribed as noticed by this Court in the judgments referred above. The Trial Court may

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NC: 2023:KHC:44778 WP No. 25651 of 2023

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consider the 'B' report in accordance with law and thereafter proceed in accordance with law and this shall be complied within a period of three months from today. It is needless to mention that the petitioner shall cooperate with the Trial Court and record his sworn statement and the sworn statement of any other witnesses that he intends to examine before the Trial Court.

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Sd/JUDGE

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PMR

Professor Dr. Dhirendra v. Kubair v State of Karnataka

Case brief

What is this about?

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Professor Dr. Dhirendra v. Kubair v State of Karnataka

Case brief

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