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IN THE HIGH COURT OF KARNATAKA R

KALABURAGI BENCH

DATED THIS THE 12TH MARCH 2015

BEFORE

THE HON’BLE MR. JUSTICE K.N.PHANEENDRA

CRIMINAL PETITION No.200925/2014

Between:

Dr. Pranesh S/o Ravindranath Jahagirdar

Age: 52 years, Occ: Govt. Service
R/o Raghavendra Colony
Bagalkot Road, Bijapur
… Petitioner
(By Sri R.S.Lagali, Advocate)

And:

1. The State of Karnataka

Represented by the PSI.,
Gol-Gumbaj Police Station

2. Sharachandra S/o Gurubasappa Rudagi

Age: 50 years, Occ: Govt. Servant
R/o Annapurna Nivas, Vijay Housing Colony
College Road, Bijapur
… Respondents
(By Sri Prakash Yeli, Addl. SPP for R1;
Sri Shivanand V. Pattanashetti, Advocate for R2)

This Criminal Petition is filed under Section 482 of Cr.P.C.,

praying to quash the order dated 26.09.2014 passed in
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Crl.Rev.Petition No.249/2013 by the II-Additional Sessions

Judge, Bijapur, in reserving liberty to respondent No.2 to file fresh
protest petition before the II-JMFC Court, Bijapur, in
C.C.No.3483/2013 (arising out of P.C.No.264/2009) against the
petitioner.

This petition coming on for Admission this day, the Court

made the following:

ORDER

Petitioner has approached this Court seeking for quashing

of the order dated 26.09.2014 passed in Criminal Revision

Petition No.249/2013 by the II-Additional Sessions Judge,

Bijapur, in reserving the liberty to respondent No.2 herein to file

fresh protest petition before II-Additional J.M.F.C., Bijapur, in

C.C.No.3483/2013 (arising out of P.C.No.264/2009).

2. I have heard the arguments of Sri R.S.Lagali, learned

counsel for the petitioner, Sri Prakash Yeli, learned Additional

State Public Prosecutor appearing for respondent No.1 and

Sri Shivanand V. Pattanshetti, learned counsel appearing for

respondent No.2. Perused the records.

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3. It is an undisputed fact that respondent No.2 herein

lodged a private complaint against the petitioner in

P.C.No.264/2009 on the file of II-Additional JMFC Bijapur, for

the offences punishable under Sections 403, 406, 417, 419, 465,

468, 420 r/w Section 34 of IPC. The said case was referred to the

jurisdictional police for investigation and report under Section 156

(3) of Cr.P.C. The police, after due investigation, submitted ‘B’

summary report before the Magistrate. Being aggrieved by the ‘B’

report, the complainant filed a protest petition. On the basis of

the contents of the protest petition, the learned Magistrate took

cognizance and then proceeded to record the sworn statement of

the complainant and thereafter ordered to register a criminal case

against the petitioner and issued summons to the accused.

4. Being aggrieved by the said order, the petitioner herein

approached the II-Additional Sessions Judge, Bijapur, by way of

revision in Criminal Revision Petition No.249/2013, wherein the

learned Sessions Judge allowed the Revision Petition and the

order dated 25.11.2013 passed by the learned II-Additional JMFC,

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Bijapur, in issuing process against the petitioner was set aside.

However, it was further ordered that the complainant is at liberty

to file fresh protest petition before the learned Magistrate and in

that event, the learned Magistrate has to consider the same along

with the ‘B’ report filed by the police and then take appropriate

decision in this regard. Challenging the said order passed by the

learned Sessions Judge, the petitioner has approached this Court.

5. The strong contention put-forth by Sri R.S.Lagali,

learned counsel for the petitioner is that the learned Sessions

Judge has power to set aside the order of the learned Magistrate,

but he has no jurisdiction to provide any liberty to the

complainant to file fresh protest petition, directing the Magistrate

to consider the fresh protest petition along with the ‘B’ report.

He contends that once the ‘B’ report is filed and contested by way

of a protest petition, the protest petition shall contain all the

ingredients of the offences alleged against the petitioner. If not,

on the basis of the protest petition, no cognizance can be taken

and no process can be issued. Therefore, the learned Sessions

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Judge should have simply dismissed the complaint on the ground

that the learned Magistrate has not properly acted upon.

6. Per contra, Sri Shivanand V. Pattanshetti, learned

counsel appearing for respondent No.2 and Sri Prakash Yeli,

learned Additional State Public Prosecutor appearing for

respondent No.1 contends that it is the original complaint on

which basis the Magistrate has referred the complaint to the

police under Section 156(3) of Cr.P.C., therefore, till the report is

filed before the Magistrate and order is passed, the complaint

exists before the Magistrate. The learned Magistrate would have

taken cognizance on the basis of the original complaint, though

there are no certain allegations made in the protest petition.

Therefore, some irregularity is committed by the learned

Magistrate but no illegality is committed by him in taking

cognizance and issuing summons.

7. I have carefully perused some of the rulings cited in this

regard.
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8. The learned counsel for the petitioner has relied upon a

decision of the Apex Court reported in 2014 SAR (Criminal) 75

in the case of B.Chandrika Vs. Santosh and another, wherein,

the Apex Court has held that,-

“Cognizance of offences on the basis of the

complaint or a protest petition, power of the Magistrate
has been described that it is well settled law that when a
complaint is filed and sent to police under Section 156(3)
for investigation and then a protest petition is filed, the
Magistrate after accepting the final report of the police
under Section 173 and discharging the accused persons
has the power to deal with the protest petition. However,
the protest petition has to satisfy the ingredients of
complaint before Magistrate takes cognizance under
Section 190 (1)(a) of Cr.P.C.”

9. The brief factual matrix of the above said case are little

bit relevant. It is stated in paragraph – 3 of the judgment that,-

“This appeal has been preferred by the second

accused, a divorced wife of the first accused. The first
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respondent herein initially filed a complaint against

accused Nos.1 and 2 before the Police Station Mohamma
which was registered as Crime No.302/2010.”

At Paragraph-4 of the said judgment, it is stated that,-

“An FIR was registered and the investigation

ordered. Police conducted detailed investigation and
submitted report. The police referred the case as not
proved. Reference report was submitted to the Judicial
Magistrate, First Class, for appropriate action. Later,
the respondent/claimant filed a protest complaint before
the above-mentioned Court for cancellations of the reference
report and for taking cognizance of the case.”

10. The head note of the decision differs from the facts

narrated in the body of the judgment, but it is clear from the

contents of the relevant portion of the above said ruling that,

initially the first information report was submitted before the

police and the police after investigation submitted ‘B’ report and

thereafter, protest complaint was filed. Therefore, the Hon’ble

Apex Court was of the opinion that protest petition or the protest
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complaint shall contain the ingredients of the offences alleged so

as to constitute the said protest petition as a complaint under

Section 2(d) of Cr.P.C. In this particular case, that is not the

factual aspect. On the contrary, a private complaint was filed and

it was referred and ‘B’ report was submitted by the police. In this

regard, it is worth to refer to a decision of the Hon’ble Apex

Court reported in H.S. Bains Vs. The State (Union Territory

of Chandigarh), wherein, the exact position of law is exposed,

on considering what should happen after private complaint is

referred and ‘B’ report is submitted by the police, the Apex Court

has held that,-

“A Magistrate who on receipt of a complaint,

orders an investigation under Section 156(3) and receives
a police report under Section 173(1), may, thereafter, do
one of three things: (1) he may decide that there is no
sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section
190(1)(b) on the basis of the police report and issue
process; this he may do without being bound in any
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manner by the conclusion arrived at by the police in their

report;(3) he may take cognizance of the offence under
Section 190 (1)(a) on the basis of the original complaint
and proceed to examine upon oath the complainant and
his witnesses under Section 200. If he adopts the third
alternative, he may hold or direct an inquiry under Section
202 if he thinks fit. Thereafter he may dismiss the
complaint or issue process, as the case may be.”
(emphasis supplied)

11. This decision clarifies the situation as to what the

learned Magistrate has to do. Third part of the above said

judgment clearly discloses that even in the absence of any protest

petition, once opportunity is given to the complainant to say

whether he would like to continue with the complaint or whether

he is satisfied with the ‘B’ report submitted by the police, the

Court can pass appropriate order. If the complainant does not

want to proceed with the complaint, the Court while accepting ‘B’

report can close the case. When an opportunity is given to the

complainant to contest the ‘B’ report and when the original

complaint is very much in existence before the learned Magistrate,

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it is the bounden duty of the learned Magistrate once again to

look into the contents of the complaint to find out whether

allegations made in the complaint constitute any penal offences

for the time being in force or whether an opportunity should be

given to the complainant to furnish his sworn statement and to

examine his witnesses and thereafter, the learned Magistrate has to

pass appropriate order under Sections 203 or 204 of Cr.P.C. In

order to provide an opportunity to the complainant, the Court

shall go through the contents of the complaint, it must take

cognizance and then proceed to record the sworn statement of

the complainant and his witnesses and pass appropriate orders

under Section 203 or 204 of Cr.P.C., either by dismissing the

complaint or issuing process against the accused.

12. In this particular case, the learned Sessions Judge has

set aside the order of the learned Magistrate only on the ground

that the protest petition did not contain allegations which

constitute any offence against the accused. Therefore, giving

liberty to the complainant to file fresh protest petition, the order

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of the Magistrate was set aside. In my opinion, the order passed

by the learned Sessions Judge, is erroneous so far it relates to

reserving a right to the complainant to file fresh protest petition.

It goes without saying that when once ‘B’ report is submitted,

after going through the contents of the ‘B’ report, it is the

complainant and his advocate who have to challenge the said ‘B’

report by bringing it to the notice of the Court by way of protest

complaint by narrating how exactly the incident had happened

and how the accused have committed the offences. In such an

eventuality, those allegations in protest petition shall be sufficient

to constitute offences under any penal laws for the time being in

force so as to enable the learned Magistrate to take cognizance.

But when the original complaint is already there, there is no

necessity for the complainant to reiterate the same contents of the

complaint in his protest petition. It suffice, if the protest petition

is filed stating that the police have not properly investigated and

therefore, the Court has to once again intervene in the matter and

provide opportunity to the complainant to prove his case before

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the Court. Therefore, in that context, the Apex Court in the

above said decision has held that even on the basis of the original

complaint the learned Magistrate can take cognizance of the

offences and proceed with the case irrespective of the report

submitted by the police.

13. Another contention raised by the learned counsel is

that once the ‘B’ report is filed it cannot be thrown out as useless

material, the learned Magistrate has to look into the contents of

the ‘B’ report in order to weigh the material on record to ascertain

whether it is a fit case for taking cognizance and proceeded with,

and whether allegations made in the complaint are vague or

whether allegations are made due to private vengeance in order to

falsely implicate the accused persons into the crime etc.

Therefore, the learned Magistrate not only should go through the

contents of the complaint but also should go through the

contents of the ‘B’ summary report. I entirely agree with the

submission made by the learned counsel. The learned Magistrate

is bound to look into the contents of the ‘B’ report though he

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may or may not rely upon the said ‘B’ report, nevertheless, he has

to apply his judicious mind before taking cognizance on the

original complaint lodged by the complainant.

14. It should be borne in mind that if a private complaint

is filed, it empowers the learned Magistrates either to refer the

matter to the police for investigation under Section 156(3) of

Cr.P.C., or to proceed to inquire into the matter under Section

200 of Cr.P.C. Even after taking cognizance also if he feels that

any further inquiry is needed, he can also refer the matter under

Section 202 of Cr.P.C., for investigation and for report. The

gamut of the above said provisions i.e., Sections 200, 202 and

156(3) of Cr.P.C., is that if the Magistrate is not fully satisfied to

proceed with the case immediately, in order to issue process to the

accused under Section 204 of Cr.P.C., he has to satisfy himself

whether it is a fit case to issue process against the accused under

Section 204 of Cr.P.C. Therefore, he is empowered to gather the

truthful facts either under Section 156(3) of Cr.P.C., or under

Sections 200 and 202 of Cr.P.C. In that context, in my opinion,

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‘B’ report submitted by the police also play some role to assist the

Magistrate in proceeding with the case. Therefore, in my opinion,

though the learned Sessions Judge has committed an error in

providing opportunity to the complainant to file fresh protest

petition but he has not committed any error in remanding the

matter to the jurisdictional Magistrate.

15. As a matter of caution, it should also be said that once

‘B’ report is submitted by the police after investigation on the

basis of FIR directly to the police and the protest petition is filed

and the learned Magistrate has passed the order either taking

cognizance or dismissing the complaint, then the parties are

bound by such proceedings. Care to be taken by the complainant

and his advocate at the time of filing protest petition. Unless

there is extraneous circumstances and reasons assigned, why

protest petition did not contain the ingredients of any offence, the

Court normally should not interfere with the contents of the

protest petition by saying that another protest petition can be

filed. If such being the case, it will definitely open a pandora box,
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in each and every case, where the protest petition is filed without

adhering to Section 2(d) of Cr.P.C., and without applying their

mind the protest petitions are filed, in each and every such case if

the appellate Court or the revisional Court provide such an

opportunity to the complainant, definitely, in my opinion, it

would be a kind of mockery of justice, that attitude should not be

encouraged.

16. In view of the above said reasons, the revisional Court

has committed an error in providing opportunity to file fresh

protest petition. However, the remand order is valid.

17. Hence, I pass the following:

ORDER

The petition is partly allowed. The direction issued by the

learned Sessions Judge in providing opportunity to the

complainant to file fresh protest petition is hereby set aside.

However, the remaining part of the order is kept intact. Further,

it is directed that the learned Magistrate has to look into the

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contents of the original complaint and also contents of the ‘B’

report and then pass appropriate orders in accordance with law

following the procedure under Sections 202 to 204 of Cr.P.C., in

the light of the observations made in this order.

Sd/-
JUDGE

msr*/NB*