Heard Sri.Mallikarjunswamy B Hiremath, learned

counsel for the petitioners and Sri.Venkatesh M

Kharvi and learned HCGP.

The present petition is filed under Section 482 of

Cr.P.C with the following prayer:

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“To quash the entire proceedings in Criminal Case No.413 of

2016 pending before the Principal Civil Judge and Judicial

Magistrate First Class, Hubballi, Dharwad for offences

punishable under Section 420, 465, 466, 468, 409 of Indian

Penal Code by allowing this petition.”

3.

Brief acts of the case are as under:

A private complaint came to be filed under Section

200 of Cr.P.C. before the Principal JMFC, Hubballi by

respondent No.2 herein which was referred to

Suburban Police Station, Hubballi. Police thereafter

registered case in Crime No.179/2013 for the

offences punishable under Sections 167, 409, 417,

420, 466, 468 read with Section 34 of IPC.

4.

After thorough investigation police filed ‘B’ report

before the jurisdictional Magistrate. The ‘B’ report

was resisted by the complainant by filing protest

petition. Thereafter the learned Magistrate recorded

sworn statement of the complainant and proceeded

to pass the order on 01.02.2016, whereby the

cognizance of the offences alleged against the

present petitioners is taken by the learned Magistrate

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and ordered the office to register the case against

the respondent and issued summons against the

accused and also issued summons to the petitioners.

Being aggrieved by the same, the petitioners are

before this Court.

5.

Sri.Mallikarjunaswamy B Hiremath, learned counsel

for the petitioners reiterating the grounds urged in

the petition contended that the trial Magistrate has

not properly considered the material on record and

also erred in not properly appreciating the material

on record without following the mandatory procedure

for rejecting the ‘B’ report, has passed the order on

01.02.2016 and sought for allowing the petition.

6.

Per Contra, Sri.Venkatesh M Kharvi learned counsel

for the complainant supported the impurgned order

and also contended that the procedural lapses if any

has not caused any prejudice to the accused, the

same should be ignored and moreover the petitioners

have got the chance to oppose the petition before the

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trial Magistrate and therefore the petition needs to be

dismissed.

7.

In reply, Sri.Mallikarjunswamy Hiremath vehemently

contended that procedural lapses would come in the

way of fair trial and in this regard he relied upon a

judgement of this Court reported in 2018 (2) KLJ

140 in the case of Dr.Ravikumar vs. Mrs.K.M.C.

Vasantha and Another, wherein it is held as under:

“5. The procedure followed by the learned Magistrate is not in

accordance with law. It is well recognized principle of law that,

once the police submit 'B' Summary Report and protest

petition is filed to the same, irrespective of contents of the

protest petition, the court has to examine the contents of 'B'

Summary Report so as to ascertain whether the police have

done investigation in a proper manner or not and if the court

is of the opinion that the investigation has not been conducted

properly, the court has got some options to be followed, which

are,-

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 the investigation has not been done properly, the court

has no jurisdiction to direct the Police to file the charge sheet

however, the Court may direct the Police for re or further

investigation and submit a report, which power is inherent

under section 156(3) of Cr.p.c, but before taking cognizance

such exercise has to be done. This my view is supported by

the decisions of the Hon'ble Apex Court in a decision reported

in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh

Mishra (para 15) and also Full Bench decision of Apex Court

reported in (1980) SCC 91 between Kamalapati Trivedi and

State of West Bengal (second head note.)

ii) If the court is of the opinion that the material available in

the '