ORDER
1. In this petition the petitioners have sought to challenge the legality and correctness of the order passed by the Sessions Judge directing and Judicial Magistrate First Class, Haveri, to consider the ‘B’ Summary report afresh after giving an opportunity to the complainant to prove his case.
2. The petition arises in the way : Respondent-2 filed a complaint to the police, Haveri, alleging commission of the offences punishable under Ss. 147, 148, 427, 447, 504 and 506 r/w Section 149 I.P.C. On the said complaint the police registered case in Crime No. 229 of 1982 and issued F.I.R. to the Court. After completion of the investigation the police sent a ‘B’ summary report saying that the complaint was false. Although respondent-2 protested to the acceptance of the ‘B’ summary report by filing a protest memo, the Magistrate accepted the ‘B’ summary report. Being aggrieved thereby, respondent-2 – approached Sessions Judge in revision. The Sessions Judge, while allowing the revision, having directed the magistrate to consider the ‘B’ summary report afresh as stated earlier, the petitioners who are accused have approached this Court with this petition.
3. The contention of Sri F. V. Patil, learned Counsel for the petitioners is that the Sessions Judge was wholly in error, not only in entertaining the revision but also in directing the Magistrate to consider the ‘B’ summary report afresh and more so because in the protest memo filed by the 2nd respondent there was no request made to the Magistrate to take action. In other words, what he contended is that the protest memo was not in the form of a complaint and therefore the Magistrate having accepted the ‘B’ summary report and there being no criminal proceedings instituted the Sessions Judge had no jurisdiction to entertain the revision.
4. There is sufficient force in these contentions. When, no investigation, the police submit ‘B’ summary report or a ‘C’ summary report saying the complaint is false or that it is a civil dispute or that there is no evidence three courses are open to the Magistrate; (i) either to accept the ‘B’ summary report and drop all further action, or (ii) on consideration of the ‘B’ report direct the police to make further investigation or (iii) take cognizance of the offence, if any, disclosed on the very report. Where the Magistrate, accepts the ‘B’ summary report the only course left to the magistrate is to drop all further action. On such acceptance of the ‘B’ report he having not taken cognizance, no criminal proceedings would be said to be instituted. The revision lies against the order passed in criminal proceedings. There being no order passed by the Magistrate in criminal proceedings pending before him, the Sessions Judge had no jurisdiction to entertain the revision. While that is so, the Sessions Judge was also justified in directing the Magistrate to consider the ‘B’ summary report once again after hearing to the 2nd respondent. Where there is a complaint made to the Magistrate and the magistrate refers the complaint to the police under Section 156(3) and on investigation the police submit ‘B’ summary report and the complainant protests to the acceptance of the ‘B’ summary report, in such cases the Magistrate may take cognizance on the original complaint made to him, record sworn statement under Section 200 Cr.P.C. If there is no complaint made to the Magistrate, the question of the magistrate taking cognizance on the basis of the protest memo does not arise, particularly when the protest memo is not in the form of a complaint and there are no allegations constituting any offence in the protest memo filed and there is also no request to take action. There are no such allegations in the protest memo filed in the case. Therefore, it was not a complaint within the meaning of that expression as defined under Section 2(d) of the Cr.P.C.; because complaint as defined means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Therefore, the Sessions Judge was wholly in error in entertaining the revision and directing the Magistrate to consider the case afresh. The petition is therefore allowed. The impugned order passed by the Sessions Judge, is set aside and the order passed by the Magistrate accepting the ‘B’ summary report is restored. The complainant is still at liberty, if he so chooses to make a complaint to the Magistrate.
5. Petition allowed.