1. 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.

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, 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 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.

8. The learned counsel for the petitioner has relied upon a decision of the Apex Court report