RAVI KRISHNA REDDY vs B S YEDDYURAPPA & ORS

The notice to be issued to the respondents is dispensed with as the trial Court has not taken cognizance and issued any summons against the

respondents herein.

The brief factual facts of the case are that, the petitioner herein has filed a private complaint against the respondents herein making several

allegations of irregularities and illegalities by them with regard to the de-notification of some immovable properties. The Special Judge i.e., XXIII

Addl. City Civil and Sessions Judge, Bengaluru City registered a P.C.R. in No.25/2011 and referred the said case for investigation and report to

the Deputy Superintendent of Police, Lokayukta. The Lokayukta Police after investigation, submitted B-Report. After submission of B-Report, the

Special Judge though has rejected the said investigation report, directly taken cognizance and issued process against the respondents. Being

aggrieved by the said order of taking cognizance and issued summons, some of the respondents viz., Smt. Shylaja, Sri. V.Somanna and Sri. D.

Lingaiah have approached this Court in Crl.R.P. No.473/2012 and Crl.R.P. No.480/2012. Vide Judgment and Order dated 02.01.2017, this

Court has allowed the said revision petitions holding that taking of cognizance directly without applying the mind is bad in law and consequently, set

aside the order dated 13.04.2012 in Spl.C.C. No.46/2012.

Therefore, the order of the learned Special Judge in rejecting the B-Report and directly taking cognizance has been set aside by this Court. This

Court has specifically directed the trial Court to apply its judicious mind to the Police report and to pass appropriate order either rejecting or

accepting the same and thereafter, proceed with the matter in accordance with law. A detailed Judgment has been passed by this Court as to how

the learned Special Judge has to apply his judicious mind before passing any such orders. After the said order, the learned Special Judge has again

taken up the matter and called upon the petitioner for giving sworn statement to proceed with the matter. The learned Special Judge has noted that

the Investigating Officer has submitted B-Report, the previous order passed by the said Court and also the order passed by this Court and

thereafter, noted that the complainant is not required to file a protest petition to the B-Report submitted by the Investigating Officer and has taken

cognizance of the case on the materials placed before the Court. If the Court found insufficient material to take cognizance, the Court has to record

statement of the complainant and his witnesses and then proceed for further orders. After reading the detailed order passed by this Court

extensively, the learned Special Judge has discharged accused Nos.1 to 4 and after verifying the records placed before the Court, the learned

Special Judge felt to give an opportunity to the complainant to adduce his sworn statement and his witnesses but, the learned Special Judge has not

passed any order so far as the B-Report is concerned, submitted by the Police. The earlier order rejecting B-Report and taking cognizance by the

Special Judge has been set aside. Therefore, it was incumbent upon the Special Judge to look into the entire papers submitted by the Police and

ought to have passed order on B-Report, submitted by the Police, whether it is required to be accepted or to be rejected. If for any reasons, if the

Court comes to the conclusion after going through the B-Report submitted by the Police that, the said report submitted by the Police are sufficient

to constitute any offence against the accused persons, then, on the basis of the B-Report itself the Court can take cognizance and issue summons

to the accused persons. If the Court comes to the conclusion that the material submitted by the Police are not sufficient or they cannot be relied

upon and the Court has to enquire into the matter independently, then the Court can enter into Section 200 Cr.P.C. and thereafter, the Court has

to look into the contents of the private complaint and look into the same whether the allegations made in the complaint constitute any offence so as

to take cognizance. If the answer is ''yes'', then, the learned Special Judge has to take cognizance of the offence constituted under the complaint

and then proceed to record sworn statement of the complainant and the statement of his witnesses and thereafter, if the learned Special Judge is of

the opinion that on perusal of the complaint averments and the sworn statement, if no case is made out, then he has to record a finding and dismiss

the complaint under Section 203 Cr.P.C. Even for any reasons the Court does not dismiss the complaint under Section 203 Cr.P.C. by expressing

its opinion, the Court can issue process against the accused under Section 204 Cr.P.C. The said procedure appears to have not been followed by

the learned Special Judge while passing the impugned order.

When it is specifically made clear in the previous order of this Court that rejection of B-Report earlier by the learned Special Judge though it is

stated that it is rejected, the earlier Special Judge has extensively has relied upon the B-Report for the purpose of issuing summons against the

accused even without providing any opportunity to tender sworn statement. As I have already noted that though technically B-Report was rejected

earlier, but, in fact, the same was relied upon by the special Judge earlier that made this Court to set aside the said order.

Now, the facts remain is that, the learned Special Judge has not passed any orders on B-Report submitted by the Police. Unless the order is

passed on B-Report, the Court gets no jurisdiction to rely upon the sworn statement of the complainant. Therefore, the order passed by the

learned Special Judge is procedurally irregular and the same amounts to illegality, which is incurable in nature. Hence, the said order dated

15.02.2017 is liable to be set aside and again the matter has to be remitted to the trial Court with a specific direction that the Special Court has to

apply its mind to the B-Report submitted by the Police and examine as to whether there are any materials produced by the Police which are

sufficient to constitute any offence and if satisfied, option is open to the learned Special Judge even to take cognizance on the basis of the B-

Report. If, for any reasons, the learned Special Judge comes to the conclusion that the B-Report requires to be rejected, then he has to pass

order, rejecting the said application and then only under Section 200 Cr.P.C., the learned Special Judge has to look into the contents of the

complaint and find out whether any offence are constituted and for what offence, the cognizance can be taken and thereafter, he has to take

cognizance of those offences and thereafter only, he can call upon the complainant to tender his sworn statement and statement of his witnesses.

The said procedure has to be very strictly followed.

In the aforesaid circumstances, the Order dated 15.02.2017 passed in P.C.R. No.25/2011 [Spl. C.C. No.2012] by the learned XXIII Addl.

City Civil and Sessions Judge and Special Judge, Bengaluru City is hereby set aside. The matter is remitted to the trial Court to pass appropriate

orders in accordance with law.

The appeal is accordingly allowed .