Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 930 (KAR)

S. A. Vasudev Murthy v. K. Sathyanarayana

2019-04-23

JOHN MICHAEL CUNHA

body2019
ORDER : 1. Heard learned counsel for the petitioners and the learned counsel for the respondent. 2. Even though the petitioner has urged large number of grounds in the petition, the learned counsel for the petitioners has confined his submission mainly on the order dated 2.9.2013 passed by the learned Magistrate issuing summons to the petitioner. 3. The impugned order reads as under: "ORDER: 1. This is a private complaint filed by the Complainant U/S 200 of Cr.P.C. 2. After the institution of the complaint, this Court has referred this case for investigation to the P.S.I., Sullia U/S. 156(3) of Cr.P.C. Later on the I.O. has submitted 'B' report. There afterwards, 'B' report has been challenged by the complainant by filing protest application as well as objections to the 'B' report. There afterwards, sworn statement of the complainant was recorded as PW-1. I have completely gone through the sworn statement contents of the Complainant. In this case, it is pertinent to note that the Police have filed the 'B' Report, the same has been challenged by the Complainant. 3. After hearing, I have also gone through the Ruling reported in:- ILR 2001 KAR 4568 of the Hon'ble High Court Wherein the Hon'ble High Court held as under: "(A) CRIMINAL PROCEDURE CODE, 1973 (CENTRAL ACT NO. 2 OF 1974) - SECTION 156(3) - Private complaint alleging Police Torture was referred by the Magistrate to the Commissioner of Police - HELD - Order of the Magistrate referring the case for investigation by Commissioner of Police is bad in law. (B) CRIMINAL PROCEDURE CODE 1973 (CENTRAL ACT NO. 2 OF 1974) - SECTIONS 190, 200, 203 & 398 - While considering the question of issuing process, the Magistrate has to see whether on the basis of material before the Court, if un rebutted, would result in conviction and he should not adopt the standard of proof applicable for evaluating the evidence adduced in full fledged trial. 4. After going through the principles laid down in the above said ruling of the Hon'ble High Court, and after going through the entire materials on hand, and also the documents produced by the Complainant clearly goes to show that a sufficient material placed before the Court by the Complainant,. 4. After going through the principles laid down in the above said ruling of the Hon'ble High Court, and after going through the entire materials on hand, and also the documents produced by the Complainant clearly goes to show that a sufficient material placed before the Court by the Complainant,. Therefore, at this juncture, I am of the opinion that the Complainant has made out sufficient grounds to take cognizance for the offences punishable U/S. 380, 465, 468, 469, 471 R/W 34 of I.P.C. Further, there are reasonable grounds to proceed against the Accused No.1 to 6 for the offences punishable U/S. 380, 465, 468, 469, 471 R/W 34 of I.P.C. Since the Complainant has made out a prima-facie case to proceed against the Accused No. 1 to 6, I am of the opinion that the 'B' Report filed by the police is not sustained and same is liable to be dismissed. Hence, as per Section 204 of Cr.P.C. I proceed to pass the following:- ORDER : Register a criminal case against the Accused No. 1 to 6 for the alleged offences punishable U/S. 380, 465, 468, 469, 471 R/W 34 of I.P.C." 4. A perusal of the order discloses that, without rejection of B-summary report, learned Magistrate has proceeded to record the sworn statement of the complainant. This procedure is contrary to the law laid down by the Hon'ble Supreme Court in Kamalapathi Trivedi vs. State of West Bengal, (1980) 2 SCC 91 which is followed by this Court in Dr. Ravi Kumar vs. Mrs. K.M.C. Vasantha and Another, ILR 2018 Kar. 1725. 5. It is evident that the learned Magistrate has not applied his mind to the allegations made in the complaint. The impugned order does not reflect that the learned Magistrate has arrived at any satisfaction as to whether the allegations made against the accused attract any of the offences alleged in the complaint. In that view of the matter, impugned order dated 2.9.2013 cannot be sustained. 6. Accordingly, the petition is allowed. The impugned order dated 2.9.2013 is set aside. Matter is remanded to the learned Magistrate to reconsider the B-summary report in the light of the guidelines set out in the above decisions. 7. Since the matter is of the year 2013, trial Court is directed to complete the exercise within three months from the date of communication of this order.