VENKATESH NARAYANAPPA Vs. VITTAL

JUDGEMENT

(1.) This petition is directed against the order passed by the Additional J.M.F.C., Sagar, in P.C.R. No. 25 of 1988 (C.C. No. 1084 of 1989) dated 20-7-1989 taking cognizance of the offence punishable under Sections 498A and 342 read with Section 34, I.P.C. against accused 1, 2, 3 and 6 and directing issue of summons to the said accused on the basis of the complaint that was lodged by the respondent herein on 18-2-1988

(2.) The main ground of attack of the petitioners herein to the order directing issue of summons to them is as follows: On the basis of the complaint received on 18-2-1988 the learned Magistrate instead of taking cognizance of the offences, he referred the same to the police under Section 156(3), Cr. P. C. calling for report. Pursuant to the said direction the Police made investigation and submitted his report which was received by the Court on 3-11-1988. The case was adjourned thereafter to different dates and finally to 20-7-1989 and in the absence of any protest by the complainant the learned Magistrate took cognizance of the offences and recorded sworn statement of one Chandrakala, W/ o Venkatesh and ordered issue of summons which procedure, according to Sri Gachchinamath, learned counsel for the petitioner, is quite incorrect. According to him, once the 'B' Report is accepted, it is for the complainant to challenge it by way of protest. As the complainant did not do the same, the learned Magistrate should have dropped the proceedings instead of taking cognizance and then issuing summons to the petitioners herein. In support of his contention, he relied upon a decision of this Court rendered in Basappa v. State of Karnataka, ILR 1987 Kar 994: (1988 Cri LJ 719) wherein it is held that, when B Report is submitted, 3 courses are open to the learned Magistrate, viz., (i) either to accept the B Report and drop all further action; or (ii) on consideration of the B Report direct the police to make further investigation; or (iii) take cognizance of the offence if any, disclosed on the very report. In the said decision it is further held that where the Magistrate accepts B Report the only course left open to the learned Magistrate is to drop all further action. Apart from this legal contention, the learned counsel for the petitioners submits that even on perusal of the complaint and the sworn statements of the complainant and the witness Chandrakala, there is no sufficient ground to order issue of summons. Even the averments made in the complaint are not sufficient to take cognizance. Since cognizance was taken on the basis of the material which are unconvincing in nature, issuing summons itself is quite arbitrary and, therefore, the same deserves to be quashed by this Court in exercise of the power conferred under Section 482, Cr. P. C. For these reasons, Sri Gachchinamath submits that the petition be allowed and the proceedings be quashed.

(3.) As an answer to the contentions raised by the learned counsel for the petitioners, Sri Jayakumar S. Patil, the learned counsel for the respondent, submits that there is no infirmity in the order passed by the learned Magistrate on 20-7-1989 taking cognizance of the offences and directing issue of summons to the petitioners. According to him, the decision relied upon by the learned counsel for the petitioners has no application to the case on hand, because, after submitting the B Report by the police, the learned Magistrate neither accepted it nor rejected it. Such being the case, the only inference is that the learned Magistrate simply postponed taking cognizance of the offences till 20-7-1989 on which date he took cognizance. According to him, there was no necessity for the respondent to make a protest to the B report as required under Section 156 (3), Cr. P. C. The question of making a protest or filing a second complaint by the respondent would arise, if the Magistrate accepts the said B Report. For these reasons Sri Patil submits that the petition be dismissed.