Failure to adhere to procedural mandate during taking cognizance vitiates the order.

COMMON ORDER

Petitioners in Crl.P.No.3043/2022 being accused Nos.2, 3 and 7 and petitioners in Crl.P.No.3073/2022 being accused Nos.13 and 14 in CC No.9564/2019 pending on the file of the learned First Additional Chief Metropolitan Magistrate, Bengaluru, are seeking to quash the order dated 08.03.2019 taking cognizance of the offence punishable under Sections 420, 468, 471 R/w Section 34 of the Indian Penal Code (for short 'the IPC').

2. Heard Sri. Balagangadhar G.S., learned counsel for the petitioners and Smt. Sowmya R, learned High Court Government Pleader for the respondent No.1 and Smt. Raksha Keerthana, learned counsel for respondent No.2. Perused the materials on record.

3. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

"Whether the petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?"

My answer to the above point is in the 'Affirmative' for the following:

REASONS

4. Respondent No.2 has filed the First Information with Devarajeevanahalli police against accused Nos.1 to 16 alleging commission of the offences punishable under Sections 420, 468, 471 R/w Section 34 of IPC. The investigation was undertaken and the investigating officer has filed the B-report stating that even after collecting the documents and recording the statements of the witnesses, he could not find sufficient materials to constitute the offences as alleged by the complainant.

5. Pursuant to filing of B-report, respondent No.2/informant was notified. He appeared before the Trial Court and filed the protest petition. The sworn statement of respondent No.2 was also recorded by the learned Magistrate. On the basis of the same, the order impugned dated 08.03.2019 came to be passed where, the learned Magistrate took cognizance for the above said offences and summoned the accused by registering the criminal case. The said order is called in question by the petitioners by filing these petitions.

6. Learned counsel for the petitioners contends that learned Magistrate has not followed the procedure as required under law and therefore, the impugned order requires to be quashed. He placed reliance on the decisions in Dr.Ravikumar Vs. Mrs.K.M.C. Vasantha and another, ILR 2018 KAR 1725 wherein, the coordinate Bench of this Court highlighted the procedure that is to be adopted by the learned Magistrate in case of a complaint filed under Section 200 and filing of the B-report by the police on investigation and also the procedure when B-report is filed by the Investigating Officer on a police complaint. The relevant portion of the paragraph 5 reads 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 furt