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K. Sham Rao Vs. A.R. Diwakar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1980CriLJ347
AppellantK. Sham Rao
RespondentA.R. Diwakar
Excerpt:
.....to the material on which he has to form his judgment and in arriving at his judgment, he is not fettered in any way except by judicial considerations. the observations in those cases clearly apply to the facts of this case. it is to be seen that even after the case was remanded by this court the learned magistrate did not peruse or look into the account books that were produced by the complainant, a perusal of the order clearly indicates that the learned magistrate is carried away by the report of the investigating officer and without looking into the account books he passed the impugned order......complaint.2. few facts of the case that the complainant-petitioner lodged a complaint before the learned magistrate on 18-12-1974 which is in brief as follows:that the complainant is one of the persons who is associated with the members of the lokashikshana trust, which came into existence in or about the year 1935, in several activities. the several activities of the trust included the publication of the daily newspaper samyukta rarnataka from hubli and bangalore with offices at the above places, the trust owns properties and the accused who is the secretary of the trust has been operating the finance of the trust in the said capacity. the accused, it is alleged, has withdrawn certain amounts totalling rs. 6,055/- from the trust account from the vijaya bank, residence road branch in.....
Judgment:
ORDER

M. Nagappa, J.

1. This revision petition by the complainant is directed against the order dated 18-11-1978 passed by the II Additional Chief Metropolitan Magistrate, Bangalore in C. R. No. 45/77 accepting the 'B' report submitted by the Police and refusing to take cognizance of the complaint.

2. Few facts of the case that the complainant-petitioner lodged a complaint before the learned Magistrate on 18-12-1974 which is in brief as follows:

That the complainant is one of the persons who is associated with the members of the Lokashikshana Trust, which came into existence in or about the year 1935, in several activities. The several activities of the Trust included the publication of the daily newspaper Samyukta Rarnataka from Hubli and Bangalore with offices at the above places, The Trust owns properties and the accused who is the Secretary of the Trust has been operating the finance of the Trust in the said capacity. The accused, it is alleged, has withdrawn certain amounts totalling Rs. 6,055/- from the Trust account from the Vijaya Bank, Residence Road Branch in between 8-7-1974 and 8-10-1974 and after having withdrawn the said amounts he has not brought the same into the books of account of the trust and in that view of the matter the complainant alleged that the accused has committed the offence of misappropriation.

3. The learned Magistrate after having received the complaint, without taking cognizance of the same referred the matter under Section 156 (3), Cr. P, C. to the Shoolay Police Station for investigation and report and the same was registered in Crime No. 6/75 under Section 408, I. P. C. by the Shoolay Police and after investigation, the Police filed a 'B' report on 17-6-1975 stating that the case is a false one.

4. The learned Magistrate after receipt of the said report, accepted the 'B' report on 1-7-1975. The complainant aggrieved by the said order came up to this Court in Criminal Revision Petition No. 447/75 on the ground that the learned Magistrate has acted illegally by accepting the 'B' report. The Court remanded the case to the learned Magistrate on 16-9-1976 with a direction that he has to pass an older in accordance with law. But, however, it appears that the learned Magistrate after such directions by this Court again proceeded to pass the Impugned order without following the provisions of the Cr. P. C. in such cases. The learned Magistrate in the impugned order narrated the facts contained in the 'B' report and thereafter held that the 'B' report has to be accepted and cognizance of the offence cannot be taken. Accordingly, while accepting the. 'B' report, he closed the file. It is the Insanity and correctness of this order that has been challenged in this revision petition.

5. Sri K. J. Shetty, the learned Counsel appearing for the petitioner-complainant, contended that the order of the learned Magistrate is arbitrary Inasmuch as he has not followed the procedure laid down for such cases. Elaborating his contention what he submitted was, that after the receipt of the 'B' report, the complainant protested and undertook that he would prove the case. The learned Magistrate without following the procedure laid down under Section 200, Cr. P. C. merely adverted to some of the facts found in the 'B' report and came to the conclusion that the complainant has not made out a case against the accused and accordingly accepted the 'B' report and closed the file. It is therefore submitted by him that the learned Magistrate has acted illegally in not following the procedure laid down under law for such cases.

6. There is force in the contention of Sri K. J. Shetty, the learned Counsel for the petitioner. The admitted facts are that the matter was referred to the Police for investigation and report by the learned Magistrate under Section 156(3), Cr. P. C. and the police after investigation submitted 'B' report. It is true that it is not obligatory on the part of the Magistrate, before whom the complaint is made and to whom it has been referred, to give an opportunity to the complainant to show that the report of the enquiry by the Police is wrong. Section 203, Cr. P. C. does not impose upon the Magistrate such a duty. All that the Magistrate has to do in such circumstances is to consider the statements on oath, if any, of the complainant as well as the result of the investigation or enquiry under Section 202, Cr. P. C. before he dismisses the complaint. It is therefore clear that nowhere it is stated that the Magistrate who has referred the complaint for investigation or for enquiry should after receipt of the report give an opportunity to the complainant to adduce evidence to show that the report of the Police is wrong or incorrect.

7. But, however, the proper procedure in such cases is to request the Magistrate to allow the petitioner to substantiate the allegations in the complaint, the Magistrate by taking cognizance under Section 200, Cr. P. C. should have proceeded in accordance with law. This proposition of law finds support in a decision reported in Ramakrishna alias Babu Bangari Bilgikar v. M. K. Patil (1977) 1 Kant LJ 335. In the said case, the Magistrate after receipt of 'B' report from the investigating agency came to the conclusion that the view taken by the Supdt. of Police was justified in coming to the conclusion that there was no case made out against the accused. It is that order which was challenged in the aforesaid case and while dealing with that aspect of the matter the Court held as follows:

Coming to the second ground, the learned Magistrate in applying the rule laid down in (1973) 2 Mys LJ 214, appears to have proceeded on the basis that the petitioners while challenging the report of the Supdt. of Police was requesting him (Magistrate) to enquire into the allegations afresh as provided by Section 202, Cr. P. C. But, it seems to me, that is not correct. The counsel for the petitioner appears to have requested the learned Magistrate to allow the petitioner to substantiate the allegations made in his complaint in accordance with law. In other words, his request appears to be not to accept the report of the Supdt. of Police but to take cognizance of the offence under Section 200, Cr. P. C. and then to proceed in accordance with law. It is well-settled that a Magistrate is not bound to accept the result of the enquiry or investigation and he must apply his judicial mind to the material on which he has to form his judgment and in arriving at his judgment, he is not fettered in any way except by judicial considerations.

In the said case, this Court also made reference to another case in Shivaraj v. Kevappa Crl. R. P. No. 21 of 1969, wherein it is held that 'although the police had filed a 'B' Summary report after investigation into the complaint, nevertheless, the learned Magistrate should have afforded an opportunity to the petitioner to substantiate the allegations made in his complaint, by taking cognizance of the offence under Section 200, Cr. P. C. and then should have proceeded according to law. Further no opportunity was given to the complainant to prove the allegations made in his complaint, the learned Magistrate was not right in acting under the provisions of Section 203, Cr. P. C. especially when the order of the learned Magistrate does not show that there are sufficient grounds for not proceeding with the complaint of the complainant.' Therefore, in that case this Court set aside the order of the Magistrate. The observations in those cases clearly apply to the facts of this case. It is to be seen that even after the case was remanded by this Court the learned Magistrate did not peruse or look into the account books that were produced by the complainant, A perusal of the order clearly indicates that the learned Magistrate is carried away by the report of the Investigating Officer and without looking into the account books he passed the impugned order. Further, as already stated, that procedure in such cases was for him to have taken cognizance of the offence under Section 200, Cr. P. C. and to give an opportunity to the petitioner-complainant to prove his case as provided by law.

8. For the aforesaid reasons, the impugned order is liable to be set aside. Accordingly, this petition is allowed, the impugned order is set aside and the case is remanded to the learned Magistrate for fresh disposal according to law and in the light of the observations made in the course of the order


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