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Judgment
H.N. Nagamohan Das, J.—In this petition the petitioners have prayed for quashing the order dated 10.08.2009 and the entire proceedings in C.C. No. 146/2009 on the file of I Additional Civil Judge (Senior Division) and Chief Judicial Magistrate, Mysore. Respondent No. 2 filed a complaint with respondent No. 1 police and the same came to be registered in crime No. 237/1998 for the offences punishable u/s 406 read with Section 34 IPC. After investigation the police filed the B report. Respondent No. 2 filed objections challenging the B report. Under the impugned order the trial Court accepted the objections, registered the case and issued summons. Aggrieved by the impugned order and the entire proceedings before the trial Court the petitioners are before this Court.
Heard arguments on both the side and perused the entire petition papers.
It is necessary at this stage to notice the law laid down by the Apex Court in the case of H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), as under:
The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. A magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and receives a police report u/s 173(2), may, thereafter, do one of three things: (i) he may decide that there is no sufficient ground for proceeding further and drop action; (ii) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (iii) he may take cognizance of the offence u/s 190(1)(a) on the basis of original complaint and proceed to examine upon oath the complainant and his witnesses u/s 200. If he adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be.
Keeping in view the law declared by the Apex Court in the decision referred to supra it is necessary to examine the fact situation in the present case. A perusal of the impugned order specifies that the jurisdictional Magistrate has not rejected the B report filed by the police. No reasons are assigned by the jurisdictional Magistrate to reject the B report. Further there is no consideration of the material placed by respondent No. 2 to come to the conclusion that a prima facie case is made out against the petitioner. In the circumstances the impugned order is liable to be set aside. For the reasons stated above, the following;
ORDER
i. Petition is hereby allowed.
ii. The impugned order dated 10.08.2009 and the entire proceedings in C.C. No. 146/2009 on the file of I Additional Civil Judge (Senior Division) and Chief Judicial Magistrate, Mysore is hereby set aside.
iii. The matter is remanded to the trial Court for reconsideration in accordance with law after providing an opportunity to both the parties.