Sri B S Somanath Vs Smt B S Shantha Bai

SRI. B.S. SOMANATH AGED ABOUT 68 YEARS S/O LATE SHANKARANARAYAN RESIDENT OF ONE OF THE FLATS IN THE PROPERTY BEARING NO.59-60 3^RD CROSS, SHANKARMUTT MAIN ROD, SHANKARAPURAM, BENGALURU

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DR. M. VIMALA AGED ABOUT 64 YEARS W/O SRI. S. NARASIMHA RAO RESIDENT OF "SUKASHAYA APARTMENT" NO.18, PAMPAMAHAKAVI ROAD, BENGALURU-560 004

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…PETITIONERS

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Digitally signed by HEMALATHA J Location: HIGH COURT OF KARNATAKA

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(BY SRI. C.V.NAGESH, SENIOR ADVOCATE FOR

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SRI. RAGHAVENDRA K., ADVOCATE)

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AND:

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SMT. B.S. SHANTHA BAI AGED ABOUT 87 YEARS W/O SRI. BHASKAR RAO RESIDENT OF THE PREMISES BEARING NO.178, KARNATAKA MAHILA SEVA SAMITHI, 4^TH MAIN, CHAMARAJPET, BENGALURU-560 018

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…RESPONDENT

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(BY SRI. K.B.MONESH KUMAR, ADVOCATE)

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HC-KAR

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THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER DATED 12.11.2019 REJECTING THE B REPORT AND THE PROCEEDINGS IN C.C.NO.27444/2019 FOR THE OFFENCE WHICH ARE MADE PENAL UNDER SECTION 420 AND 506 R/W 34 OF IPC PENDING ON THE FILE OF THE XXIV A.C.M.M., BENGALURU CITY.

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

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioners have challenged an order dated 12.11.2019 passed by the XXIV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.27444/2019 rejecting the 'B' report.

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(i) The respondent informed the Station House

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Officer, Chamarajpet Police Station, Bengaluru on 28.02.2012 that the petitioners were appointed as trustees of the Trust and they were also entrusted with the work of constructing the Silver Jubilee Hall to commemorate the silver jubilee of the establishment of the Trust. It is alleged that during the course of construction of the building, the petitioners conspired to cheat the Trust and had received a sum of Rs.2,03,00,000/-. When the other trustees of the Trust called upon the petitioners to furnish the accounts, they went on postponing the same. On

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HC-KAR

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23.09.2010, a general meeting of the Trust was held whereat the petitioners were called upon to furnish the accounts. It was alleged that the petitioners misbehaved with the other trustees and with an intention to cheat the Trust, they left the meeting without signing the attendance register. Therefore, the petitioners were suspended from the trusteeship of the Trust and time was fixed for valuation of the construction done. The petitioners failed to appear for the valuation. Therefore, a Government approved valuer valued the construction put up by the petitioners at a sum of Rs.71,67,098/-. It was therefore, alleged that the petitioners had defrauded the respondent of a sum of Rs.1,31,27,902/- and hence, prayed suitable action be initiated against the petitioners.

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(ii) The jurisdictional police after conducting an investigation filed a 'B' report, which was challenged by the respondent by filing a protest petition. The Trial Court recorded the sworn statement of the respondent and thereafter, rejected the 'B' report and then proceeded to take cognizance of the offences punishable under Sections 420 and 506 read with Section 34 of IPC and issued summons to the petitioners.

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HC-KAR

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(iii) Being aggrieved by the same, the petitioners are before this Court.

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The learned Senior counsel for the petitioners submitted that the procedure adopted by the learned Magistrate in first recording the sworn statement of the respondent and thereafter, rejecting the 'B' report and then taking cognizance, is irregular in as much as it was incumbent upon the Court to first consider the 'B' report. He contends that if the Court is of the opinion that the 'B' report submitted by the police is to be rejected then, it should apply its mind and reject the 'B' report and thereafter, peruse the private complaint or the protest petition and verify whether the same makes out a cognizable offence and then take cognizance of those offences and provide opportunity to the complainant to give his sworn statement and to record the statement of witnesses as provided under Section 200 of Cr.P.C. He submits that instead of doing so, the learned Magistrate has without considering the 'B' report, recorded the sworn statement of the respondent and thereafter, rejected the 'B' report and then took cognizance. This, he submits, falls foul of the procedure contemplated under Sections 200 and 204 of Cr.P.C. In support

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HC-KAR

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of this contention, he relied upon the judgment of the Coordinate Bench of this Court in Dr. Ravikumar vs. Mrs. K.M.C. Vasantha and another [ILR 2018 KAR 1725] as well as the judgment of the Hon'ble Apex Court in Vasanti Dubey vs. State of Mandhya Pradesh [(2012) 2 SCC 731] .

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Per contra, the learned counsel for respondent submitted that the learned Magistrate after applying its mind has rightly taken cognizance and therefore, no interference is warranted with the order passed by the learned Magistrate.

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I have considered the submissions of the learned Senior counsel for the petitioners as well as the learned counsel for the respondent.

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The fact that the 'B' report was filed by the police is not in dispute. It is also not in dispute that a protest petition is filed by the respondent against the 'B' report. A Coordinate Bench of this Court in Dr. Ravikumar , referred supra, while defining the procedure that should be followed after a 'B' report is filed, held as follows:-

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"5. The procedure followed by the Learned Magistrate is not in accordance with law. It is well

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HC-KAR

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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 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 vs DINESH MISHRA [AIR 1968 S.C. 117] (para 15) and also Full Bench decision of Apex Court reported in between KAMALAPATI TRIVEDI vs. STATE OF WEST

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BENGAL [(1980) SCC 91] (second head note.)

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HC-KAR

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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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HC-KAR

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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 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 postpone 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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HC-KAR

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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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In the case on hand, the learned Magistrate did not comply with the above procedure but on the contrary, soon after the protest petition was filed, the learned Magistrate recorded the sworn statement of the respondent and then proceeded to reject the 'B' report and thereafter, took cognizance of the offences mentioned above. As rightly contended by the learned Senior counsel for the petitioners,

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HC-KAR

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this procedure followed by the Trial Court is not in line with the procedure prescribed under Sections 200 and 204 of Cr.P.C.

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Consequently, this petition is allowed . The order dated 12.11.2019 passed by the XXIV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.27444/2019, rejecting the 'B' report and taking cognizance of the offences punishable under Sections 420, 506 read with Section 34 of IPC is set aside. The case is remitted back to the learned Magistrate to strictly consider the protest petition in accordance with the judgment of the Coordinate Bench of this Court in Dr. Ravikumar vs. Mrs. K.M.C. Vasantha and another [ILR 2018 KAR 1725].

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In view of disposal of the petition, pending I.As., if any, do not survive for consideration and the same stand disposed off.

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Sd/(R. NATARAJ) JUDGE

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PMR List No.: 1 Sl No.: 32

Sri B S Somanath v. Smt B S Shantha Bai

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Sri B S Somanath v. Smt B S Shantha Bai

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