A Magistrate must adhere to established procedural law regarding B final report handling; failure to do so results in erroneous cognizance and proceedings.

ORDER :

S.VISHWAJITH SHETTY, J.

1. Petitioner is before this Court with a prayer to set aside the order dated 02.02.2019 passed by the Court of I Additional District and Sessions Judge, Ballari in Criminal Revision Petition No.79 of 2017, wherein the order dated 31.08.2017 passed by the Court of II Additional Civil Judge and JMFC, Ballari in C.C.No.295 of 2014 arising out of PCR No.184 of 2011 registered for offence punishable under Section 420 of IPC has been set aside and the learned Magistrate was directed to proceed with the case by framing charge against the petitioner for the offence punishable under Section 420 of IPC.

2. Heard learned counsel for the parties.

3. Respondent No.2 herein had filed private complaint before the Jurisdictional Court of Magistrate, Ballari in PCR No.184/2011 and the same was referred under Section 156(3) of Cr.P.C. to the Jurisdictional Police Station for investigation. Thereafter, FIR in Crime No.368 of 2011 was registered by Cowl Bazar Police Station, Ballari for offence punishable under Section 420 of IPC against the petitioner herein. In the said case, after investigation, the police had filed ‘B’ final Report before the Jurisdictional Court of Magistrate. It appears that respondent No.2 had opposed acceptance of the said ‘B’ final Report filed in Crime No.368 of 2011. The learned Magistrate therefore had proceeded to record sworn statement of the respondent No.2/complainant and having taken cognizance of the alleged offence, had issued summons to the petitioner.

4. After the petitioner had appeared before the learned Magistrate, the evidence of respondent No.2 was recorded before framing of charge, as provided under Section 244 of Cr.P.C. and thereafter, in exercise of powers under Section 245 of Cr.P.C., order dated 31.08.2017 was passed discharging the petitioner in the case as no prima facie evidence to frame charge was found against him. Aggrieved by the said order dated 31.08.2017 passed in C.C.No.295 of 2014 by the Jurisdictional Court of Magistrate, respondent No.2 had filed Criminal Revision Petition No.79 of 2017 before the Jurisdictional Sessions Court, which was allowed vide the order impugned dated 02.02.2019. It is under these circumstances, the petitioner is before this Court.

5. Perusal of the material on record would go to show that, after holding detailed investigation in the case, the Police had filed ‘B’ final report in the present case, on the ground that dispute between the parties is civil in nature and the private complaint was filed before the Jurisdictional Court of Magistrate by misconception. ‘B’ final report filed in the present case was opposed by respondent No.2/complainant by filing a protest petition.

6. Learned Magistrate thereafter had proceeded to record sworn statement of the respondent No.2/ complainant and after taking cognizance of the alleged offence, had issued summons to the petitioner herein. Thereafter, exercising powers under Section 245 of Cr.P.C. the learned Magistrate vide order dated 21.08.2017, had discharged the petitioner. In the said order, learned Magistrate, having appreciated the material available on record had recorded a finding that allegations made by the complainant are purely civil in nature and no prima facie material was available to register criminal case against the accused.

7. The Co-ordinate bench of this Court in the case of Dr.Ravikumar Vs.Mrs.K.M.C.Vasantha in Crl.P.No.536 of 2017, disposed off on 27.11.2017, has laid down the procedure that a Magistrate is required to follow, after a B final report is filed before him. The same reads as follows:

i. The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that