IN IHE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT GULBARGA

BEFORE

THE IION’BLE MR. JUSTICE B. SREENIVASE GOWDA

DATED THIS THE 25Th DAY OF JANUARY 2012

CRIMINAL PETITION.NO. 15251 OF 2011

BETWEEN:I. ABDUL AZIZ 5/0 KHAJA SAB

AGE: 70 YRS 0CC : AGRI

2. ABDUL RAZAQ Sb ABDUL AZIZAGE: 50 YRS. 0CC ; AGRIL

BOTH ARE RIO NOOR KHAN TALEEMBIDAR,

PETITIONERS

(BY SRI.SANJAV A. PATIL . ADVOCATE)

AND:MOHD. AYUB KHAN S/0 ISMAIL KHANAGE: 42 YRS, 0CC : PLOTING BUSINESSRIO MULTANI COLONY BIDAR, . . RESPONDENT

(BY SRI,SHI\’ANA\f) V. PATFANASHETFI FOR RESPONDENfl

THIS CRIMINAL PE’IITION IS FILED UNDER SECfION 482 OF

CR.P.C BY TIlE DVOCATE FOR ThE PETITIONERS PRAYING THAT

THIS HONBLE C’OERT MAY BE PLEASED TO, GRANT THE FOLLOWING

PELIEFS : TO Cl. ASH THE ORDER DATED 24.2.2011 PASSED IN

CRL.REV,PET.NO 53/20 10 BY THE ADDL. DIST AND SESSIONS JUDGE

AT BIDAR, VIDE DOCUMENT NO.12. AND TO QUASH THE IMPUGNED

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ORDER HAlED 16.1 L2010 IASSED IN P.C.NO.29/2009(CC.NO,2332/2010) BY THE U” ADDI. •JMFC II AT BIDAR IN THEINTEREST OF JLSTICE AND EQUITY.

THIS LE III ION COMING ON FOR ORDERS THIS DAY, THECOURT MADE Fl IF FOLLOWING:

ORDER

Petit ioiici who are arrah.ncd as accused Nos,A. 1 and

A.2 in PC \o.29/2009 (CC No. No2332 of 2011) pending on

the tile ol I Addi. IMFC Bidar who have preferred this

petition scckin to quash the order dated 2422012 passed

in Criminal Revision petition 53/2010 by the I AddL District

and Session Judge Bidar and to quash the order dated

16.11.2010 passed in PC No.29/2009 (CC No.2332/2010) by

the 1 Ad11. JMFC —II at Bidar.

2. Learned (ounsel appearing for petitioners submits when

once the 3 idical Magistrate refers the private complaint filed

under Seiion 200 Cr.P.C, by a complainarn to the

jurisdictional police for investigation under Section 156 (3) of

Cr.P.C, and wlivn police after ilwcstigating the said complaint

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file 13’ repot and when complainant ifies protest memo

challenglia lilt- said 13’ report the learned Magistrate ought to

have passed an order regarding acceptance or rejection of the

said ‘B’ report before posting the case for the sworn statement

of the cOmphIIL1uu. lie submits that In the instant case the

learned Magistrate after submission of ‘13’ report by the police

issued notice to the complainant who filed protest memo and

thereafter without passing any order regarding acceptance or

rejection of 1-3’ report he committed an error in posting the

case for the sworn statement of the complainant and it vitiate1k

the entire proceedings. In support of his contention he relied

upon the decision of this Court in the case of

Basavarajendra vs Ravindra and Another reported in

2011(2) Kar. L.J. 174. Further he contended that the

Revislonal (‘ourt also committed an error in confirming the

said order ol lie Magistrate Court. Therefore he prays for

allowing the appeal by setting aside the order passed by the

Revislonal Cnu.i.

S

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3. WhercLn the learned the learned counsel appearing for

the respondent submits there is no illegality or infirmity in

the order I)itS”t d by the Thai Court and confirmed by the

Revisional C outi inviting interference of this Court and prays

for dismissal of the petition.

4. Respondcnt filed a private complaint against petitioners

and two others under Section 200 of Cr.P.C. before the trial

Court alleging they have committed the offences punishable

under Sections 468. 471 and 420 of IPC. The trial Court

referred t h. ‘omplaint to 11w jurIsdictional police for

investigation uader Section 156(3) of Cr.P.C. The police after

investigating the complaint ified B report. Thereafter the trial

Court issued n nice to the complainant. The complainant filed

protest memo iesisting the ‘B’ report. The trial Court without

passing any order on B report regarding it’s acceptance or

rejection pO%ti”i the case for sworn statement of the

complainant. 1 hereafter it took coamlzance of the offence and

issued prixess to the accused persons. The learned

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Magistrate after receipt of B report and after filing protest

memo by the complainant should have passed an order on B

report regardn4 its acceptance or rejection. On the other he

posted the ias’ for sworn statement of the complainant and

after recoi dint., sworn statement, took cognizance of the

offence and ishued process to the petitioners-accused. The

procedure adopted by the Magistrate is contrary to the

provisions of C’r.P.C. and to the law laid by this Court in the

aforesaid case. Therefore the order passed by the trial Court

and confinned by the Revisional Court are not sustainable in

law and tha ii.. liable to be set aside.

6. For the rcasons stated above, Criminal Petition is

allowed. lix oider dated 16.11.2010 passed by the Addl.

J.M.F.C-Il, Bidar in P.C. No.29/2009 (C.C. No.2332/2010)

and the oider dated 24.02.2012 passed in Cr1. Rev. Petition

NO.53/2010 hi the Addl. District & Sessions Judge, Bidar

are set asidc. The matter is remitted to Addl. J.M.F.C-II,

Bidar with a di ection to reconsider the private complaint in

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P.C. No.29/2009 from the stage where B report and protest

memo art riled and pass appropriate order regarding

acceptance or rejection of B report submitted by the police

and thereaitcr proceed with the matter in accordance with

law.

salJUDGE

SIMS