BALAKRISHNA. B. NAYAK, SMT. SUNDARI. B. NAYAK, SRI. NARASIMHA NAYAK AND SMT. ARCHANA A. PAI Vs. BHAGYASHREE B. NAYAK

JUDGEMENT

(1.) PRIVATE complaint lodged by the respondent alleging the offences punishable under Sections 327, 498 -A, 504 and 506 r/w. 34 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act (for short "D.P. Act") was referred to jurisdictional police under Section 156(3) of Cr.P.C. for investigation and report. During investigation, the Investigating Officer recorded the statements of the complainant and other witnesses. Ultimately, the Investigating Officer filed 'B' Summary Report. The learned Magistrate issued notice to the complainant -respondent on 'B' Summary Report filed by the Investigating Officer. On service of notice, the complainant filed her objections to the 'B' Summary Report Thereafter, the learned Magistrate heard the learned counsel appearing for the complainant. However, after perusal of 'B' Summary Report, the learned Magistrate was of the opinion that the evidence collected by the Investigating Officer during investigation and produced along with the 'B' Summary Report itself is sufficient to indicate prima facie case against the petitioners and therefore, took cognizance of the offences alleged in terms of Section 190(1)(b) of Cr.P.C. and directed registration of the criminal case and issue of summons to the petitioners arraigned as Accused Nos. 1 to 4. Aggrieved by the said order dated 12.07.2012, the petitioners have presented this petition.

(2.) THE principal contention urged in this petition is that the fact that the learned Magistrate on receipt of the 'B' Summary Report, issued notice to the complainant, received objections and heard the arguments of the counsel for the complainant, would indicate that he had rejected the 'B' Summary Report and proceeded to act on the original complaint filed, in which event, the learned Magistrate was required to record the sworn statement of the complainant and her witnesses, if any, and since the said procedure has not been adopted, the order directing registration of the criminal case and issuance of summons is bad in law. Having heard the learned counsel for the petitioners and on perusal of the certified copy of the entire order sheet, I am of the considered opinion that there are no justifiable grounds to entertain this petition. No doubt, as could be seen from the order sheet, after receipt of 'B' Summary Report, the learned Magistrate ordered issue of notice to the complainant, pursuant to which, the complainant filed objections and the counsel for the complainant was heard. However, as could be seen from the impugned order, the learned Magistrate did not proceed to reject the 'B' Summary Report. On the other hand, by looking into the evidence collected during investigation and produced along with the 'B' Summary Report, the learned Magistrate is of the opinion that the materials on record are sufficient to prima facie establish the offences alleged and there are reasonable grounds to proceed against the petitioners. Therefore, the learned Magistrate in exercise of power under Section 190(1)(b) of Cr.P.C. took cognizance of the offences alleged and directed registration of the case. When the learned Magistrate proceeds to take cognizance upon the police report as provided by Section 190(1)(b) of Cr.P.C., the question of recording sworn statement does not arise. The learned Magistrate in the operative portion of the order has specifically indicated that the cognizance is taken under Section 190(1)(b) of Cr.P.C. Merely because the complainant was notified about the 'B' Summary Report and the counsel for the complainant was heard, it cannot be said that the cognizance has been taken on the basis of the original complaint. Under these circumstances, there was no necessity on the part of the learned Magistrate to record sworn statement of the complainant. In this view of the matter, there is no illegality or irregularity committed by the learned Magistrate in directing registration of the criminal case and issue of summons to the petitioners. In this view of the matter, I find no merit in this petition. Therefore, the petition is rejected.