Veerappa And Others v. Bhimareddappa

Sri M/s. Prime Law Associates, Advocates for Petitioners

Sri Mohap Shanthanagoudar, Advocate for Respondent

Patri Basavana Goud, J.:—

I have heard at length Sri S.A Razvi, learned Counsel for the petitioners-accused and Sri Bajashekar Siri, learned Counsel for the respondent-complainant.

2. The respondent-complainant lodged a complaint with the police setting out as to what the petitioners-accused had allegedly done on 23.7.1996 and which acts amounted to offences punishable under the Indian Penal Code. The police investigated into the same and submitted ‘B’ report before the jurisdictional Magistrate. The respondent-complainant filed what he called objections to ‘B’ report filed by the police. I would extract the whole of that document for better appreciation of rival contentions of the parties:

“In the Court of the JMFC., Yelburga

C.C No. 310/98

B.S Madinoor v. Veerappa

OBJECTIONS TO ‘B’ F.R FILED BY THE POLICE

Herein the complainant above named begs to file his objection to BFR filed by the I.O

The complainant has filed the complaint on 23.8.1996 before the concerned police. The accused have committed an offences punishable under heinous offences. Inspite of that I.O has not at all Investigated the matter and not at all required and recorded the statement of witnesses which has sighted by the complaint. Only the intention of the I.A to help the accused persons. This fact will also brought to the notice of the higher officials.

In fact purposely deliberately to harass the complainant and to help the accused persons. I.A has submitted ‘B’ F.R

Now the complainant is ready to prove the charges against the accused.

Hence it is prayed that the ‘B’ F.R filed by the police may not be accepted and complainant may be permitted to prove the charges against the accused persons before this Hon'ble Court.

Hence this objections.

Place: Yelburga.Sd/-

Date: 24.3.98Complainant.”

The learned Magistrate then took cognizance obviously under Section 190(1)(a) Cr. P.C, recorded the sworn statement of the complainant and one witness, found sufficient ground to proceed against the petitioners-accused and directed issuing of process against them for the offences punishable under Section 143, 147 and 148 IPC and Section 341, 323, 324, 504, 506 read with Section 149 IPC.

In this proceeding under Section 482 Cr. P.C, petitioners-accused seek quashing of the above said proceeding.

3. The only ground urged on behalf of the petitioners-accused by their learned Counsel Sri S.A Razvi is this: The learned Magistrate has taken cognizance under Section 190(1)(a) Cr. P.C upon receiving a complaint in the form of a protest petition under Section 200 Cr. P.C The said protest petition, however, is not a complaint within the meaning of Section 2(d) Cr. P.C Therefore, there was no proper complaint before the learned Magistrate under Section 200 Cr. P.C for taking cognizance, and taking of cognizance on the basis of such document therefore is bad in law.

4. Sri Rajashekar Siri, learned Counsel for the respondent-complaint would however submit that, the protest petition need not be a rewriting of all that has been stated in the earlier complaint, and that, it would suffice merely to denote the intention of the complainant that he would request the Court not to accept the ‘B’ report, but, on the other hand, to afford him an opportunity of proving his case and since that intention is made clear in ample measure from the protest petition as extracted above, the same need to be construed as a complaint for the purpose of proceeding under Section 200 Cr. P.C and that the said protest petition is very much a complaint within the meaning of Section 2(d) Cr. P.C

5. It is settled position, and in this regard a reference could be made to a decision of this Court in Basappa v. State Of Karnataka* . ILR 1987 KAR 994., that where a ‘B’ report is submitted, the jurisdictional Magistrate would have three alternatives viz., either to accept the ‘B’ report and drop further proceedings, or to direct further investigation by the police, or on consideration of the facts as disclosed in the ‘B’ report and without agreeing with the conclusion of the Investigating Officer, to take cognizance of the offence as disposed from that report. If the learned Magistrate follows this last course, then he would still be taking cognizance on a police report under Section 190(1)(b) Cr. P.C But, it would be open to the complainant to demonstrate his opposition to the acceptance of the ‘B’ report by the Learned Magistrate and seek an opportunity to prove the case against the accused. This is normally done by the complainant by way of what is called a protest petition. It is with such a protest petition we are dealing with herein.

6. Where a complainant in the very first instance approaches the jurisdictional Magistrate under Section 200 Cr. P.C by filing a written complaint and where it is referred to the police under Section 156(3) Cr. P.C and after investigation, ‘B’ report is submitted, it is well settled that the protest petition in such a case need not be a rewriting of what all that has been stated in the original complaint earlier filed before the learned Magistrate. A reference in this regard may be made to a decision relied upon by Sri Rajashekar Siri, learned Counsel for the respondent-complainant viz., Ninganagowda v. Smt. Shantavva . ILR 2000 KAR 3108.. It was held therein that, it is not necessary to rewrite the same point written in the complaint. That was a case wherein initially a complaint under Section 200 Cr. P.C had been filed, same had been referred under Section 156(3) Cr. P.C for investigation by the police, ‘B’ report had been submitted after investigation, and then, a protest petition was filed, and it was in respect of such protest petition that this Court said that the same need not be a rewriting of all that had been earlier said. There could, therefore, be no disputing the proposition that where there is already a complaint earlier filed under Section 200 Cr. P.C, a protest petition need not be a rewriting of all that has been said earlier.

7. We are however concerned herein with a situation wherein the initial report was not to the jurisdictional Magistrate under Section 200 Cr. P.C, but, only to the police, and it is on the police investigating into the same and submitting the ‘B’ report, that the complainant asked the magistrate to take cognizance under Section 190(1)(a) Cr. P.C on the basis of what he called protest application. The question is whether such a protest application is not required to be in the form of complaint within the meaning of Section 2(d) Cr. P.C, and whether it will suffice if it is merely in the form of a protest petition such as the one mentioned in the earlier cases referred to above, or to be precise, in a case like the one referred to in ILR 2000 KAR 3108. In other words, even if the protest application does not conform to the definition of a ‘complaint’ in Section 2(d) Cr. P.C whether it can still be construed as such a complaint. Before answering this question, I may first deaf with the submission of Sri Rajashekar Siri, learned Counsel for the respondent-complainant that the protest application concerned herein does meet the requirements of Section 2(d) Cr. P.C I have extracted the whole of the protest application above. Since the complainant is asking the Magistrate to take cognizance under Section 190(1)(a) Cr. P.C, all references in the protest application extracted above to the ‘B’ report or to what the I.O has done etc., would be of no avail to the complainant. The only sentence in the protest application in so far as it is material for application being considered as complaint within the meaning of Section 2(d) Cr. P.C is this: “The accused have committed offences punishable under heinous offences”. One more sentence relevant in this regard is: “Hence, it is prayed that the ‘B’ F.R filed by the police may not be accepted and complainant may be permitted to prove the charges against the accused persons before this Hon'ble Court”. As will be presently seen, it would not suffice to merely say that the accused have committed offences. That takes us nowhere, and it will not be possible for the learned Magistrate to apply his mind with regard to taking of cognizance under Section 190(1)(a) Cr. P.C What is required is the acts committed. It is those essential ingredients that are lacking in the protest application concerned. As to how facts necessary for constituting an offence would be essential in a complaint under Section 200 Cr. P.C could be better understood if the relevant provisions are looked into. Section 2(d) Cr. P.C defines ‘complaint’ as meaning any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown, has committed an offence, however, the said complaint not to include a police report. The essential features therefore are that, there should be an allegation made orally or in writing, that it should be before a magistrate, that allegation should be that some person known or unknown has committed an offence, and such an application before the Magistrate should have been made with a view to his taking action under the Code. It is such a complaint that Section 200 Cr. P.C speaks of. When Section 200 Cr. P.C speaks of a magistrate taking cognizance of an offence on such a complaint, it is referring to the taking of cognizance under Clause (a) of sub-section (1) of Section 190 Cr. P.C The said Section 190(1)(a) Cr. P.C speaks of the Magistrate taking of cognizance of any offence upon receiving a complaint of facts which constitute such offence. In other words, it should be containing facts that constitute such offence, of which, the learned Magistrate is taking cognizance. Unless these essential ingredients are there, there would be no way enabling a Magistrate to take cognizance under Section 190(1)(a) Cr. P.C on a complaint. I am of the opinion that, the mere sentence viz., that the accused have committed offences punishable under heinous offences would not be a complaint of facts which constitute an offence, cognizance of which is being taken by the learned Magistrate under Section 190(1)(a) Cr. P.C There was therefore no complaint under Section 200 Cr. P.C before the learned Magistrate within the meaning of Section 2(d) Cr. P.C, upon which, the Magistrate could have taken cognizance of an offence under Section 190(1)(a) Cr. P.C

8. In Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda . 1970 1 SCC 665, this is what the Supreme Court said as regards the meaning of a complaint:

“Para-11:— The word ‘complaint’ has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence.”

In circumstances similar to the present case, in Sunil Majhi v. The State . AIR 1968 CAL 238., the Calcutta High Court said that a similar protest petition against a final report submitted by the police is of no avail and the proper course to be taken by the complainant is to file a protest petition, what is called Naraji, stating the facts of the case and praying for action by the Court, so that the same may be treated as a complaint and disposed of as such.

Even in the decision of this Court earlier referred to, viz., ILR 1987 KAR 994, this Court pointed out that, if there is no complaint initially made to the Magistrate under Section 200 Cr. P.C, the question of the Magistrate taking cognizance on the basis of the protest memo does not arise if the said protest memo is not in the form of a complaint and if there are no allegations constituting any offence in the protest memo filed, and if there is also no request to take action. In the protest memo that was being considered by this Court in the said decision, it was noticed that there were no allegations and therefore it was not a complaint within the meaning of Section 2(d) Cr. P.C

9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the magistrate under Section 200 Cr. P.C, but, has approached the police only and where the police after investigation have filed the ‘B’ report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) Cr. P.C on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) Cr. P.C and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) Cr. P.C Instead, if it is to be simply styed as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 Cr. P.C That is what has happened in the present case, and in my opinion, the contests of the protest petition do not make the document concerned a complaint within the meaning of Section 2(d) Cr. P.C

10. Petition is therefore allowed and the impugned proceedings is quashed.

11. At this stage Sri Rajashekar Siri, learned Counsel for the respondent submits that, the complainant may be given the liberty to file fresh complaint. Needless to say, this is what this Court in the decision referred to above viz., ILR 1987 KAR 994 observed thus in relation to such a request:

“Complainant is still at liberty if he so chooses to make a complaint to the Magistrate.”

What was therefore said in ILR 1987 KAR 994 could also be said now so far as the liberty to the complainant to file a fresh complaint is concerned.