The State of Mysore Vs. Gurappa and ors.

- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 397: [r.b.naik, j] submission of b report by the police -protest petition - acceptance of b report - challenge to revision against held, if the original complainant appears before the court and filed his protest petition to b report and opts to examine himself and other witnesses in support of his case, the legal recourse that is left to the magistrate is to treat such protest petition as original complaint filed under section 200 cr.p.c., the b report, along with the material produced there in looses importance and such material would be of no value. the question of acceptance or rejection of b report at that stage would arise only in the event the complainant does not make out a prima facie case for issue of process. further, the magistrate, who takes cognizance of complaint when examined upon oath the complainant and the witnesses present, in that process, there should be no assistance to the complainant or his witnesses fro any third source and it is the magistrate alone who shall examine the complainant and his witnesses without the assistance of either prosecutor or any counsel. on facts, held, on filing of protest petition, the contents of the protest petition and the sworn statement made before the magistrate by the complainant and his witnesses would alone form integral part of the complaint and the magistrate will have to proceed as provided under chapter-xv of the cr.p.c., order of magistrate was set aside and matter remitted back to the magistrate to proceed with the case from the stage of filing of protest petition and thereafter pass appropriate orders in accordance with law......by the learned second additional sessions judge, gulbarga, to quash the order dated 14th september, 1972 by which the learned magistrate, shorapur, directed the sub-inspector of police, kembhavi to submit a charge-sheet against the accused.2. the facts are these : one bandappa of kanhalli in shorapur taluk, gulbarga district, filed a complaint in the court of the j. m. f. c., shorapur against the accused alleging that he had committed an offence punishable under section 323, i.p.c. the learned magistrate referred the complaint to the police under section 156 (3), cr. p, c. the sub-inspector of police, after investigation, submitted a 'b' report. the learned magistrate, it appears, rejected the 'b' report and directed the sub-inspector of police to file a charge-sheet against the accused.3. the question that arises for consideration is whether a magistrate can direct the police to submit a charge-sheet when the police, after investigation, have submitted a final report.4. the scheme of chapter xiv, cr. p, c. shows that the formation of an opinion as to whether or not there is a case to place the accused on trial, is left to the officer-in-charge of the police station. when once the officer-in-charge of the police station, after investigation, submits a final report, it is open to the magistrate to accept the report or reject the same. if the magistrate, rejects the report of the police officer, he can take cognizance of an offence and proceed with the trial of the case. but he has to act judicially and the order passed by him on such report is a judicial order,5. a matter similar to the one in question, came up for decision before the supreme court, in abhinandan jha v. dinesh mishra : 1968 crilj97 . the supreme court pointed out that : 'there is no power, expressly or impliedly conferred, under the code, on a magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the code, that there is no case made out for.....