Shankreppa and Others vs State of Karnataka

K.N. Phaneendra, J—The petitioners have approached this Court seeking quashing of the entire proceedings in C.C. No. 183/2014 pending on the file of JMFC Lingasugur, wherein the learned Magistrate has taken cognizance and issued summons to the petitioner and others for their appearance to answer the charges under Sections 420, 406, 409 r/w Section 149 of IPC.

I have heard the arguments of the learned counsel for the petitioners and also the learned HCGP for State. I have carefully perused the records.

One Mr. B.B. Kulkarni, Executive Officer, Taluk Panchayat, Lingasugur, lodged first information report before the Lingasugur Police making allegations that he has been working as Executive Officer since 06.10.2009. Hatti village falls within the jurisdiction of Lingasugur Taluk Panchayat. It is alleged that accused persons who are shown in the first information report including the present petitioners alleged to have discharged their duties as Secretaries and Chairman of the said Gram Panchayat of Hatti. It is also alleged that without following certain rules, they have misappropriated the funds allotted to the said panchayat and for the purpose of wrongful gain, they have utilized the said funds for themselves. Giving details of the year, names of the Secretaries and Chairman, name of the scheme and the amount which was misappropriated, he requested the police to take appropriate action.

The police on the basis of the said First Information Report registered a case in Crime No. 6/2010 and submitted the FIR to the Court and began the investigation. After thorough investigation, the police have submitted "B" summary report. The learned Magistrate was not satisfied with regard to the mode of investigation done by the investigating agency and found sufficient materials to proceed against the accused. Therefore, learned Magistrate quashed the "B" Summary report and taken cognizance on the "B" Report and issued summons against the petitioners, which order is challenged before this Court as illegal.

Before adverting to the contents of the order passed by the learned Magistrate, I should remind myself that what is the procedure, the learned Magistrate has to follow when the private complaint is filed or charge sheet is filed or any report is filed by the police under Section 173 of Cr.P.C.

Section 190(1)(a)(b)(c) of Cr.P.C., empowers the Magistrate to take cognizance on three circumstances.

"190(1)(a). Upon receiving a complaint of facts which constitute such offence;"

That means to say, the complaint should be under Section 2(d) of Cr.P.C., containing the allegations which are sufficient to constitute any offence under any penal law for the time being in force.

"190(1)(b). Upon a police report of such facts;"

That means to say, if a person aggrieved has directly approached the police by filing first information report under Section 154 of Cr.P.C., and after due investigation, if the police files report to the Court and if the said report contain the allegations which are sufficient to constitute offence, then also the Magistrate is empowered to take cognizance on the basis of such police report. It should not be understood that only on the basis of the charge sheet, the Magistrate has to take cognizance because the provision under Section 190(1)(b) of Cr.P.C., does not refer to charge sheet but it only refers to a report. Whatever may be the nature of the report submitted by the police, the learned Magistrate is not bound by the opinion of the police, but on the basis of such materials submitted by the police in the said report, if the Magistrate is of the opinion that there are sufficient grounds to proceed against the accused and the said report constitute sufficient allegations against the accused, then also he can take cognizance and issue summons.

"190(1)(c). Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."

So far as this case is concerned, it falls under Section 190(1)(b) of Cr.P.C., that is to say, in this case the police have submitted "''B" summary report. Therefore, if the Magistrate has to take cognizance there should be some material in the report which are sufficient to constitute any offence under any penal law to proceed against the accused persons. So on the basis of the cognizance being taken on the police report, then the Magistrate has to pass appropriate order under Sections 202 to 204 of Cr.P.C.

Section 202 of Cr.P.C., refers to Magistrate taking cognizance on the complaint. If he himself wants to inquire into the matter, then he can do so by even referring the matter to the police for investigation and report. These Sections 200 to 202 of Cr.P.C., are only applicable if a private complaint is filed and the learned Magistrate is empowered to take cognizance under Section 190(1)(a) of Cr.P.C. After considering the statements of the complainant and the witnesses on oath and any material collected by the Magistrate under Section 202 of Cr.P.C., if he is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such case, he shall briefly record the reasons for doing so. Therefore, these provisions are referable when a private complaint is filed and the learned Magistrate even after taking cognizance can inquire into the matter and pass appropriate order under Sections 203 or 204 of Cr.P.C. If the complaint is not filed before the Court, but a report is submitted by the police under Section 173 of Cr.P.C., then the said report shall be in the nature of a complaint for the purpose of taking cognizance by the learned Magistrate. That means to say, it should contain all the necessary ingredients of the offences being committed by the accused persons supported by other materials submitted by the police along with the report under Section 173 of Cr.P.C. Only after going through the contents of the "B" report as well as material submitted by the police, if the Magistrate is of the opinion that the materials collected are sufficient to proceed against the accused for the purpose of hearing before charge or for the purpose of recording the plea of the accused. Here one should bear in mind that once the Magistrate takes cognizance and issues summons against the accused, the very next stage after appearance of the accused before the Court is either to record the plea of the accused or to hear before charge and pass appropriate Order under Sections 239 and 227 of Cr.P.C., as the case may be. Therefore, once the Magistrate takes cognizance and passes Order under Section 204 of Cr.P.C., to issue process, it goes without saying that there must be sufficient materials against the accused person for the purpose of recording the plea or for the purpose of framing of charges. Otherwise, the Magistrate should dismiss the complaint itself under Section 203 of Cr.P.C.

Now coming back to the facts of this particular case, it is the case that the first information report was submitted to the police and after investigation "B" report was submitted to the Court. The Magistrate appears to have issued notice to the first informant to challenge the "B" final report, if he is willing to do so. Though the notice was served on the complainant, the said person has not shown any interest to contest the proceedings by filing any protest petition. Therefore, what was left with the learned Magistrate is the contents of the "B" final report and the materials submitted by the police, either for the purpose of dropping the proceedings against the accused or for the purpose of taking cognizance and proceeding against the accused. Of course, the learned Magistrate is right in observing that he is not bound by the opinion of the police mentioned in the ''B'' summary report but in spite of that, he can take cognizance on over all visualizing the "B" final report which are sufficient to constitute an offence against the accused person that mean to say though the police have submitted the "B" summary report in the normal course but in the real sense of law it amounts to a report to the Court containing facts and materials collected. The Court can accept or reject the same. However, further means to say that on the basis of such report, whether it is "B" report or the charge sheet, the Court has to examine the contents of the report and the materials submitted by the police in support of the report. If the Court comes to the conclusion that there are materials, which constitute any offence under penal law for the time being in force and sufficient to issue process against the accused, then the learned Magistrate can issue process against the accused persons. Of course, materials available in the "B" Report need not be of such quality that they are sufficient for the purpose of convicting the accused. But, prima-facie the allegations and the materials collected should disclose the commission of the offence by the accused. Therefore, the learned Magistrate is empowered to take cognizance and issue process against the accused only in the event of "B" Report submitted by the police is prima-facie sufficient to proceed against the accused calling upon the accused to explain the allegations made against them. In this context, this Court has to consider the factual matrix of this particular case.

As I have already narrated, the first information report does not contain the details as noted above with regard to the violation of which of the rules, who are the aggrieved persons and how the amount has been manipulated or misappropriated by the petitioners. Therefore, for the purpose of investigation, such FIR was submitted by the police. During the course of investigation, in fact, the police have recorded the statement of the first informant and also several witnesses including C.W. 1 Bapurao son of Bhimrao Kulkarni, Executive Officer of Taluka Panchayat, Lingasugur and requested them to furnish necessary documents and materials pertaining to the said allegations made in the first information report. In turn, he has not submitted any of the documents or any materials before the police and it is specifically mentioned in the "B" report that no documents have been produced before the investigating officer nor any of the witnesses have supported the version of the first information report. The police have also recorded the statements of CWs. 2 to 25 Smt. Ashabee and others who are alleged to be the beneficiaries out of the scheme under which the Government has sanctioned lot of funds. The statement of these witnesses according to the police clearly disclose that they have obtained the loan under the said scheme and constructed the houses and the entire amount which was to be released in their favour under the scheme have been released to them to their bank account and they have properly utilized the said amount and constructed the houses. Relying upon such statement of the witnesses and CW-1 having not produced any materials, the police found that there was no mis-appropriation as alleged in the FIR. Therefore, the police have submitted the "B" report.

The learned Magistrate has observed that he was not satisfied with the investigation done by the Investigating Officer and that the Investigating Officer has suppressed the material things before the Court, therefore, he has taken cognizance. The said observation in my opinion is not proper and correct. If at all the investigation officer has not investigated the case properly, the scope open to the learned Magistrate is to refer the investigation to some other police officer for the purpose of further investigation and for getting proper report. If no materials are produced by the Investigating Officer along with the report, it may not be said that the learned Magistrate in spite of that can take cognizance and issue process against the accused. At the cost of repetition, I may say that, learned Magistrate can only take cognizance of any offence on the basis of the allegations made in the "B" report and those allegations shall be sufficient to constitute the offence alleged against the accused persons.

The statement of the witnesses in this particular case are not supporting the case of the prosecution and the documents are not produced along with the report supporting the case of the prosecution and what remained for consideration of the learned Magistrate is only bare allegations made in the FIR without any connecting material. Whether the Magistrate can still issue process against the accused is the question that is posed before this Court. In my opinion, the learned Magistrate could not has been taken cognizance and issued process against the accused as there are no materials available to constitute any offence against the accused persons. At any stretch of imagination, the FIR submitted before the Court can be treated as a private complaint in the absence of any protest petition in the nature of a private complaint. Of course, the learned Magistrate can take cognizance of the matter and he could have himself inquired the matter and collected the material and thereafter he could have passed the appropriate order, but the same has not been done in this particular case. Therefore, the learned Magistrate when rejected the "B" report and the contents of the "B" report when does not contain sufficient information for the purpose of proceeding against the accused, in such eventuality, the cognizance taken and process issued against the petitioners is bad in law. Therefore, in my opinion, the learned Magistrate has committed a serious error in taking cognizance and issuing process against the petitioners. Therefore, such proceedings if allowed to be continued amounts to abuse of process of the Court. Hence, the same deserves to be quashed.

Hence, I pass the following:

ORDER

The petition is allowed. Taking of cognizance and issuance of process against the petitioners and all further proceedings in C.C. No. 183/2014 pending on the file of J.M.F.C. Lingasugur, insofar as it relates to this petitioners is concerned, are hereby quashed.