1. These two petitions are filed under section 482 of Cr.P.C., seeking to quash the order dated 24.6.2017, passed by the II JMFC Court, Hubballi, against the petitioners in Crime No.641/2007 of Vidyanagar P.S., taking cognizance for the alleged offences punishable under sections 307, 120(B), 114 of IPC.
2. The brief facts of the case are that, on 11.12.2007, the complainant Smt.Chandanarani W/o.Dr.Shivanand Doddamani made a complaint by way of giving statement in KIMS Hospital, before the PSI of Vidyanagar, P.S. She has alleged in the complaint that on 10.12.2007 at about 10.45 p.m., herself and her husband Shivanand Doddamani were sleeping in the house, two persons ranged the door bell on account of treatment for emergency case. Accordingly she opened the door and after having information she informed her husband Dr.Shivanand Doddamani to attend the persons so approached. When her husband came out of the house, the said two unknown persons fired in all four bullets upon Dr.Shivanand Doddamani, who sustained bleeding injuries and fell down. On hearing the bullet sound, the complainant came out of the room and found her husband lying. She has also stated that the two persons who fired bullets were aged about 30 years and roughly of height of 511. She immediately took the help of Dr.Ashtagimath who was residing in front of the quarters of the complainant and her husband was shifted to KIMS Hospital, Hubballi, where she made the statement of complaint. She has further stated in the complaint that she suspect the involvement of Dr.M.G.Hiremath and Dr.Hangaraga, who might have hired the shooters in order to eliminate her husband, who was holding the post of Superintendent in KIMS Hospital.
3. On the basis of the said complaint, Vidyanagar Police registered Crime No.641/2007 for the offences punishable under sections 307, 120(B), 114 of IPC and section 25 of Arms Act. Initially the investigation was taken up by the Assistant Commissioner of Police, North Division, Hubballi. Thereafter the investigation was entrusted by the Government to the COD Police. The COD Police took up the further investigation and after completing the investigation, submitted C report on 23.10.2009 before the jurisdictional Magistrate. Aggrieved by the C report, the first informant and also victim filed protest petitions on three occasions i.e., two petitions on 4.2.2010 and one petition on 26.6.2010. They challenged the report submitted by the police.
4. The learned jurisdictional Magistrate, after hearing the counsel for the first informant, passed the impugned order on 24.6.2017, by which he accepted the C report as against accused Nos.1 and 2 and rejected the same against accused Nos.3, 5 and 6. Accused Nos.4 and 7 were discharged from the case. The learned Magistrate directed the office to register the criminal case against accused Nos.3, 5 and 6 for the offences punishable under sections 307, 120(B) and 114 of IPC.
5. Accused No.6 has filed Crl.P.No.101612/2017 seeking to quash the impugned order, whereas, accused No.3 has filed Crl.P.No.101613/2017 seeking to quash the impugned order. Since both the petitions arise out of the impugned order dated 24.6.2017, passed by the JMFC-II Court, Hubballi, both the petitions were heard together and disposed of by this common order.
6. The petitioners have contended that when the learned Magistrate has accepted C report against accused Nos.1 and 2, there cannot be any trial against the petitioners/accused Nos.3 and 6 and it would be a futile exercise. It is further contended that the police have not followed the guidelines laid down by the Apex Court while subjecting the petitioners to Narco Analysis Test and other tests and therefore the entire investigation is vitiated. It is also submitted that the protest petitions filed by the complainant and victim cannot be treated as a complaint under section 2(d) of Cr.P.C. Therefore the learned Magistrate would not have taken cognizance of the alleged offences and register the criminal case against the petitioners. It is also submitted that after passing the impugned order, accused No.5 is dead and accused Nos.3 and 6, against whom the case is registered have filed these petitions seeking to quash the impugned order.
7. Heard the learned Senior Counsel for the petitioners, the learned High Court Government Pleader for respondent No.1 and the learned counsel for respondents No.2 and 3, namely, the complainant and the victim.
8. The learned Senior Counsel appearing for the petitioners submitted reiterating the grounds taken in the petition that the investigating authorities have not followed the guidelines laid down by the Apex Court in the case of Selvi and others vs. State of Karnataka, (2010) 7 SCC 263. It is also submitted that the protest petitions filed by the first informant and the victim are not in terms of section 2(d) of Cr.P.C. and therefore the cognizance of the alleged offence would not have been taken on the basis of the said protest petitions.
9. In support of his contentions, the learned senior counsel has relied on the judgments in the case of Veerappa and others vs. Bheemareddappa, ILR 2002 KAR 1665, Basappa vs. State of Karnataka, ILR 1987 KAR 994 and judgment of this Court in Crl.P.No.11326/2013 decided on 9.1.2014. It is further submitted that nothing is alleged in the complaint against the petitioners except suspecting them and proceedings initiated against the petitioners in the absence of accused Nos.1 and 2 would take away the case of the prosecution and it will be a futile trial against them. It is further submitted that if the reports are removed from the record as they are not in compliance with the guidelines issued by the Apex Court, there is nothing against the petitioners to proceed against them for the alleged offences.
10. Per contra, the learned High Court Government Pleader supported the C report filed by the COD police. The learned counsel appearing for respondents No.2 and 3 submitted that the petitioners ought to have filed an application under section 227 of Cr.P.C. before the Court for their discharge instead of filing the present petitions under section 482 of Cr.P.C.
11. The impugned order dated 24.6.2017 goes to show that the learned Magistrate mainly relied on the reports of polygraphy test as well as brain mapping test, which were not considered by the investigating officer while submitting the C report. The Court has observed that, perusal of the said reports including the Narco Analysis Test report, found that the report is negative in respect of accused No.4 and that it is positive in respect of accused Nos.3, 5 and 6 stating that there were deceptive response and also having possession of the information about the crime. So far as accused No.7 is concerned, Narco Analysis Test report was not produced and therefore the learned Magistrate proceed to discharge accused Nos.4 and 7. However on the basis of the reports of Polygraphy Test, Narco Analysis Test and Brain Mapping Test, opined that there is a prima facie material against accused Nos.3, 5 and 6 for the alleged offences and therefore proceeded to reject the C report against these accused persons and took cognizance of the alleged offences punishable under sections 307, 120(B) and 114 of IPC against accused Nos.3, 5 and 6.
12. The impugned order is entirely based on the reports of Polygraphy Test, Brain Mapping Test and Narco Analysis Test. Therefore this Court has to consider as to whether those reports were acceptable and whether the guidelines laid down by the Apex Court in the case of Selvi and others stated supra have been duly followed in subjecting the petitioners to the above stated tests have to be examined. The Apex Court in the case of Selvi and others stated supra has laid down the following guidelines in paragraph No.265 of the judgment.
“265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the narcoanalysis technique and the Brain Electrical Activation Prof ile test. The text of these Guidelines has been reproduced below:
(i) No l ie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a confessional statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.”
13. The said guidelines have been laid down on the basis of the guidelines issued by the National Human Rights Commission for administration of Polygraphy Test (Lie Detector Test) on the accused. The first guideline states that no lie detector should be administered except on the basis of the consent of the accused and that his consent obtained voluntarily. Second guideline provides that, if the accused volunteers for such a test, he should be given access to a lawyer and he should be explained about the possible result of the test. It is also further stated in guideline No.3 that the consent should be recorded before the judicial Magistrate. Fourthly, during the hearing before the jurisdictional Magistrate, the person alleged to have agreed should be duly represented by a lawyer. It is also made clear that the statement so made shall not be a confessional statement to the Magistrate but will have the status of statement made before the police, which is hit by section 27 of the Indian Evidence Act. Whether all these guidelines were strictly followed by the investigating officer and the independent agency, who subjected the petitioners to such Polygraphy Test has to be considered.
14. The copy of the letter dated 1.4.2008 issued by the jurisdictional Magistrate addressed to the Assistant Commissioner of Police, Hubballi, is produced. This letter goes to show that the investigating officer was permitted to get conduct the Narco Analysis Test over the suspect by name Mallikarjun Hiremath who is the suspect in Vidyanagar P.S. Crime No.244/2007. It is also stated that the test should be conducted without causing any harm to the physical and mental health of the suspect.
15. The copy of the report submitted by the Assistant Director, Forensic Physiology Division, Forensic Science Laboratory, Madiwala, Bengaluru, dated 2.4.2008 addressed to the Commissioner of Police, Hubballi Dharwad, is produced. This report contains the details of subjecting the petitioners to Brain Mapping Test and methodology followed in subjecting them to the said test. In this report neither it is stated that the petitioners volunteered to subject themselves for Brain Mapping Test nor it is stated that their advocate was present at the time of subjecting them to the test. The letter issued by the Court also does not show as to whether the guidelines stated above have been followed.
16. Absolutely there is no mention that the accused persons volunteered to subject themselves for Lie Detector Test and that their lawyer was present and that they were explained about the implication of the said test and it is also not at all stated that consent of the accused was recorded before the judicial Magistrate who was represented by a lawyer. Therefore it is crystal clear that none of the guidelines laid down by the Apex Court stated above have been followed in subjecting the petitioners to Brain Mapping Test or Lie Detector Test, thereby the entire proceedings subjecting the petitioners to such tests is vitiated for the reason that the guidelines issued by the Apex Court have not at all been followed. Under these circumstances, the leaned jurisdictional Magistrate ought not to have relied on such reports, which have no evidentiary value, in order to take cognizance for the alleged offences against the petitioners. On this ground alone the impugned order taking cognizance of the alleged offences against the petitioners is liable to be quashed.
17. Admittedly, the complaint was made by the complainant before the police by giving a statement on the basis of which the case was registered. It is also admitted that the investigation was transferred to COD police and the said police after completing the investigation, filed C report before the jurisdictional Magistrate. Thereafter on 4.2.2010, the victim Dr.Shivanand Doddamani has filed the protest petition and the complainant Smt.Chandanarani has also filed objections on the C report on the same day. Therefore two separate protest petitions have been filed on 4.2.2010. Further on 26.6.2010 another protest petition was filed by the victim Dr.Shivanand Doddamani in detail. In this protest petition, the allegations made in the complaint have been reiterated. However the prayer made in this protest petition reads as follows:
On these among other grounds that are to be urged at the time of hearing it is most humbly prayed that, the Honble court may be pleased to reject the f inal report f iled by the investigating off icer/COD.
It is further prayed that, this Honble court may be pleased to refer the matter for further investigation by some senior police off icer or allow this injured victim to prosecute and conduct this case by himself in the interest of justice and equity.
18. Therefore, there was no prayer made in the protest petition to the Court requesting to take cognizance of the alleged offences and initiate proceedings against the accused persons, which is the requirement of the complaint under section 2(d) of Cr.P.C. In this regard the judgment of this Court in Veerappa and others vs. Bhimareddappa stated supra has to be considered. In the said case this Court has held as under:
“In cases where the police after Investigating into the offences alleged in the complaint f iled before them file B Final Report, the Magistrate can take cognizance of the offences only if the protest petition filed by the complainant to B Final Report satisf ies the requirement of a complaint as def ined in Section 2(d) of the Code of Criminal Procedure in the sense that protest petition should contain facts that constitute offences in respect of which the Magistrate is taking cognizance under Section 190(1)(a) of the Cr.P.C. or otherwise not.
But cognizance can be taken on protest memo in cases where private complaint is f iled before the Magistrate.
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 f iled, 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.
From the above, the position that emerges is this: Where initially the complainant has not f iled any complaint before the magistrate under Section 200 Cr.P.C., but, has approached the police only and where the police af ter investigation have f iled 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 f iles shall have to satisfy the requirements of a complaint as def ined 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 styled 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 contents of the protest petition do not make the document concerned a complaint within the meaning of Section 2(d) Cr.P.C.
19. Therefore, in order to be a complaint within the meaning of section 2(d) of Cr.P.C., the protest petition should contain the material constituting the offence and there must be a prayer to the Court to take cognizance of the alleged offences against the accused persons and initiate criminal case against them. This principle is reiterated in the case of Basappa vs. State of Karnataka stated supra and also in Crl.P.No.11326/2013 decided on 9.1.2014. The definition of the complaint under section 2(d) of Cr.P.C. was considered in all these cases. It is made clear in all these cases that the complaint means any allegation made orally or in writing to the Magistrate with a view to his taking action under the Code that some person whether known or unknown has committed an offence. H
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owever the same does not include police report. 20. In view of the principles stated above, if the protest petitions filed by the complainant and the victim are examined, it goes to show that the two protest petitions filed on 4.2.2010 do not contain any of the facts constituting the offence nor there is a prayer to take action against the accused persons. Even in the protest petition filed by the victim on 26.6.2010, the prayer made in the protest petition as stated above goes to show that there was no prayer to the Court to take cognizance of the alleged offence and initiate proceedings. But the prayer was to refer the matter to further investigation by some senior police officer. Therefore the protest petition filed by the victim cannot be held as a complaint within the meaning of section 2(d) of Cr.P.C. 21. The learned jurisdictional Magistrate accepted C report against accused Nos.1 and 2. The allegations in the complaint are that accused Nos.1 and 2 fired bullets upon the victim. Therefore they are the main culprits. In the absence of main accused persons, the trial if any conducted against the other accused persons appears to be a futile exercise. 22. In the case on hand, it is made out by the petitioners that absolutely there were no grounds to take cognizance of the alleged offences punishable under Sections 307, 120(b) and 114 of IPC. Therefore taking cognizance of the alleged offences against the petitioners and initiating criminal proceedings against the petitioners would amount to abuse of process of law and as such the impugned order is liable to be quashed. Accordingly, this Court proceed to pass the following: ORDER Both the criminal petitions filed under Section 482 of Cr.P.C. are allowed. The order dated 24.6.2017, passed by the JMFC II-Court, Hubballi, against the petitioners in Crime No.244/2007) consequently registering the criminal case in C.C.No.1574/2017, against the petitioners, is hereby quashed.