Point of law: Cognizance of offence – set aside - Admittedly, when the notice was not served on the complainant and the impugned order was not within his knowledge, there was delay in approaching the revisional Court. Even if the learned counsel for the complainant was present when the 'B' report was filed, however, admittedly notice issued to the complainant was not served on him.

ORDER :

1. Complainant in P.C.No.154/2010 on the file of the Court of II Addl. Civil Judge and JMFC, Ballari, has preferred this petition, praying to set aside the order dated 07.11.2012 passed by the learned Magistrate accepting the ‘B’ final report as well as the order dated 17.03.2018 passed by the Addl. District and Sessions Judge, Ballari, in Criminal Revision Petition No.317/2013, confirming the said order.

2. The petitioner herein filed a private complaint against the respondents which was referred for investigation under Section 156 (3) of Cr.P.C. The Cowl Bazaar police, Ballari, registered a case in Cr.No.279/2010 against the respondents for offences punishable under Sections 447, 379, 209, 211, 244, 455, 458, 506 read with Sections 25 and 34 of IPC. The police filed a ‘B’ final report after investigation which was received by the learned Magistrate on 11.07.2011. Thereafter, notice was issued to the complainant. However, vide order dated 07.11.2012, since notice was not served on the complainant and since he had remained absent, the learned Magistrate accepted the ‘B’ report and closed the case.

3. The petitioner/complainant filed a revision petition along with an application under Section 5 of the Limitation Act, before the Sessions Court in Crl.R.P.No.317/2013, challenging the order passed by the learned Magistrate. The said Criminal Revision Petition came to be dismissed vide order dated 17.03.2018.

4. The material on record disclose that after receiving the ‘B’ final report, notices were issued to the complainant on several occasions and since the complainant was absent, ‘B’ report was accepted and the case was closed. The order dated 07.11.2012 passed by the learned Magistrate is extracted hereunder:

“Complainant absent report perused no reason to re-issue the notice since the comp lain ant has left the address hence ‘B’ Report is adopted and the case is closed.”

5. It is not in dispute that though notice was issued, the complainant was not served. The endorsement of the police dated 07.11.2012 go to show that the complainant had vacated the previous address and thereafter, the police sought further time to serve notice on him. The same has not been considered by the learned Magistrate. Acceptance of ‘B’ report by the learned Magistrate is without application of mind. No reasons are assigned why the ‘B’ report was being accepted. Admittedly, when the notice was not served on the complainant and the impugned order was not within his knowledge, there was delay in approaching the revisional Court. Even if the learned counsel for the complainant was present when the ‘B’ report was filed, however, admittedly notice issued to the complainant was not served on him.

6. The course open for the learned Magistrate when a ‘B’ report is submitted has been dealt with by the Hon’ble Apex Court in several pronouncements. In VASANTI DUBEY Vs. STATE OF MADHYA PRADESH reported in (2012) 2 SCC 731, referring to the case of H.S.Bains Vs. State (UT of Chandigarh) reported in (1980) 4 SCC 631, the position has been summarized as under:

“20.2 – Where, after completion of the investigation, the police sends an adverse report under Section 173 (1), the Magistrate may take any of the following steps:

(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint,

(ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190 (1) (a) and proceed to examine the complainant under Section 200.”

7. It is also useful to refer to paragraph 21 of the said judgment which reads as under:

“21. Thus, it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options: (i) he may not agree with the