Karnataka High Court
Mahesh K @ Mageshwaran K vs Chief Secretary on 8 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 18820 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 18820 OF 2021 (GM-RES)
BETWEEN:
1. MAHESH K @ MAGESHWARAN K
AGED ABOUT 66 YEARS
S/O SHRI KANDASWAMY M (LATE)
NO.63 MICHAEL PALAYA 2ND STAGE
1ST MAIN 1ST CROSS
NEW TIPPASANDRA POST
BANGALORE 560 075
...PETITIONER
(BY SRI. MAHESH K @ MAGESHWARAN K,
PARTY-IN-PERSON)
AND:
1. CHIEF SECRETARY
STATE OF KARNATAKA
ROOM NO.320 3RD FLOOR
Digitally signed
by
VIDHANASOUDHA
PADMAVATHI B
K
BENGALURU 560 001
Location: HIGH
COURT OF 2. PRINCIPAL SECRETARY
KARNATAKA
HOME DEPARTMENT
STATE OF KARNATAKA
ROOM NO.222 IIND FLOOR
VIDHANASOUDHA
BENGALURU 560 001
3. COMMISSIONER OF POLICE BENGALURU
STATE OF KARNATAKA
NO.1 INFANTRY ROAD
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WP No. 18820 of 2021
(OPP TO SPARSH HOSPITAL)
BENGALURU 560 001
4. DEPUTY COMMISSIONER OF POLICE CENTRAL
STATE OF KARNATAKA
CUBBON PARK POLICE STATION
KASTURBA ROAD
BENGALURU 560 001
5. ASSISTANT COMMISSIONER OF POLICE
SESHADRIPURAM SUB-DIVISION
STATE OF KARANTAKA
(NEAR SHESHADRIPURAM COLLEGE)
BENGALURU 560 020
6. INSPECTOR OF POLICE/SHO
JURISDICTION POLICE STATION
SESHADRIPURAM
198 S C ROAD
1ST MAIN RD
SESHADRIPURAM
BENGALURU 560 020
7. REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
OPP TO VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
8. REGISTRAR (JUDICAIAL)
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
OPP TO VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
9. ADVOCATE GENERAL
HIGH COURT OF KARANTAKA
HIGH COURT BUILDINGS
STATE OF KARNATAKA
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WP No. 18820 of 2021
HIGH COURT BUILDING
OPP TO VIDHANA SOUDHA
AMBEDKAR VEEDHI
BENGALURU 560 001
10. SHRI VASANTH V FERNANDES
STATE OF KARNATAKA
HIGH COURT GOVT PLEADER
O/O ADVOCATE GENERAL
(OPP TO VIDHANA SOUDHA)
AMBEDKAR VEEDHI
BANGALORE 560 001
11. SHRI CHETHAN DESAI
STATE OF KARNATAKA
HIGH COURT GOVT PLEADER
O/O ADVOCATE GENERAL
(OPP TO VIDHANASOUDHA)
AMBEDKAR VEEDI
BENGALURU 560 001
12. SMT INDIRA POOVAIAH
W/O MR M K POOVAIAH
AGED ABOUT 72 YEARS
R/AT JAIN STREET
BASAVANAGUDI
VEERAJAPET
KODAGU 571 218
13. SANKETH POOVAIAH
S/O MR M K POOVAIAH
AGED ABOUT 47 YEARS
R/AT APPAIAH SWAMY STREET
BASVANAGUDI VEERAJAPET
KODAGU 571 218
14. M PUTTARAJU (ACCUSED NO.3)
S/O H MUNISWAMAPPA (LATE)
AGED ABOUT 52 YEARS
NO.24 13TH CROSS
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WP No. 18820 of 2021
COBBONPETE
BENGALURU 560 002
15. V K NARAYANASWAMY (ACCUSED NO.4)
S/O KONAPPA (LATE)
AGED ABOUT 60 YEARS
NO.10-14 SHAKAMBARI NAGAR
OLD NO.64/2 GURUMARUTHAPPA GARDEN
6TH CROSS
SARAKKI MAIN ROAD
J P NAGAR
1ST PHASE
BENGALURU 560 078
16. SHRI NANDA KUMAR
NEHRU NAGAR CO-OPERATIVE BANK
NO.172 1ST MAIN ROAD
SESHADRIPURAM
BENGALURU 560 020
17. SHRI S R KUMAR (PRSENT IN-CHARGE CEO)
S/O RAMANNA (LATE)
AGED ABOUT 45 YEARS
NEHRU NAGAR CO-OPERATIVE BANK
NO.172 1ST MAIN ROAD
SESHADRIPURAM
BENGALURU 560 020
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1 TO R6 AND R-9;
SMT. B.V. VIDYULATHA, ADVCOATE FOR R7 AND R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ORDER RESTORATION FIR IN CRIME NO.22/2018
DTD.28.2.2018 AS PER ANENXURE-A AS FOR AS IT IS
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WP No. 18820 of 2021
RELATED TO ACCUSED NO.3/RESPONDENT NO.14
PUTTARAJU ACUSED NO.4/R-15 V.K. NARAYANASWAMY AND
ACCUSED NO.5/R-16 NANDA KUMAR THEN CEO OF R17 BANK
AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question, inter alia, the proceedings of the learned Magistrate in accepting the 'B' report filed by the police and closing the proceedings without considering the contentions of the petitioner filed in the protest memo to the 'B' report, as also, certain documents appended to a memo filed thereon.
2. Heard the petitioner (party-in-person), learned HCGP, Smt. K.P. Yashodha appearing for respondent Nos.1 to 6 and 9 and Smt. B.V. Vidyulatha, learned counsel appearing for respondent Nos.7 and 8 and have perused the material on record.
-6- WP No. 18820 of 20213. Sans details, facts germane are as follows:
The petitioner registers a complaint before the jurisdictional police on 28.02.2018 alleging offences that would become punishable under Sections 120B, 468, 471, 420 and 34 of the IPC against the accused therein. This becomes a crime in Crime No.22/2018. The police claiming to have conducted the investigation, file a 'B' summary report before the concerned Court. The contents of the complaint or the allegations therein are not germane to be considered at this juncture, as the contention of the petitioner in person qua the order on the 'B' summary report merits acceptance.
4. On filing of the 'B' report, the petitioner files a protest memo seeking the learned Magistrate to reject the 'B' report and take cognizance of the offences so alleged against the accused therein. A memo was also filed along with the judgments to the effect that the 'B' report filed itself was contrary to the judgments of the Apex Court.
-7- WP No. 18820 of 20215. The learned Magistrate, by his order dated 18.03.2021, accepts the 'B' report by a perfunctory order.
The order of the learned Magistrate accepting the 'B' report and rejecting the protest memo, reads as follows:
"Thee Sheshadripurum Police submitted "B"
report for the offences punishable U/Secs.120(B), 468, 471 and 420 r/ w Sec. 34 the IPC
2. Against to the B report submitted by the said police, the complainant filed protest memo stating that the report submitted by the jurisdictional police is not correct, hence on various grounds and in order to investigate into the alleged complaint dated 28.02.2018 and in Cr.No.22/2018 by the jurisdictional police in accordance with law and this court taken cognizance of the alleged offences against accused persons .
3. Along with the protest memo the counsel relied on the following decisions reported in:
1) (2014) 2 SCC 1- Petitioner Lalita Kumari Vs. - Government of Uttar Pradesh and others
2) (2017) 9 SCC 641- Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & others Vs-State of Gujarat and other.-8- WP No. 18820 of 2021
3) W.P.(Civil) No:731 of 2018-Sarvapalli Radhakrishna University and another Vs-Union Bank of India and others.
4) Criminal Appeal No.255 of 2019 - Sau Kamal Shivaji Pokarnekar Vs The State of Maharashtra and others.
5) (2009 ) 2 SCC 363- Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Pvt.Ltd and another.
Accordingly he prayed for allowing the protest memo filed by the complainant and reject the "B" of the Sheshadripuram police in the interest of justice and equity.
4. It is alleged that the complainant police have registered a case in Cr.No.22/2018 on 28.02.2018 for the alleged offences punishable U/Sec.120(B), 468, 471 and 420 r/w Sec.34 of the IPC. After thorough investigation, the police have submitted B report stating that as per the case of the complainant the alleged offences are purely civil in nature and hence on various grounds the Police Inspector of Sheshadripuram PS prayed to accept the B report.
5. I have heard the complainant counsel on merits of the case . On careful perusal of the B report submitted by the police and protest memo filed by -9- WP No. 18820 of 2021 the complainant, this court is of the opinion that the alleged case on hand is civil in nature and hence complainant failed to make out prima facie case against the accused persons for the alleged offences. With this observation, I proceed to pass the following . ORDER The protest memo filed by the complainant against the " B " report filed by the jurisdictional police is hereby rejected .
The " B report is hereby accepted."
It is this order inter-alia that is called in question by the petitioner in the subject petition.
6. On a perusal at the documents appended to the petition, it becomes ostensible that the petitioner had filed a detailed protest memo along with several documents, which had to be considered by the learned Magistrate prior to acceptance of the 'B' report and rejection of the protest memo by such cryptic order. The protest memo filed by the complainant against the 'B' report reads as follows:
"PROTEST MEMO BY COMPLAINANT
AGAINST 'B' REPORT
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WP No. 18820 of 2021
The Complainant Humbly state and submit as follows :
1. complainant filed criminal complaint before Inspector of Police, Jurisdictional P.S., Seshadripuram, Bangalore alleging commission cognizable offences against Accused Nos.1 to 5 on 28/02/2018.
2. Primary accused no. 1 Smt. Indira Poovalah and accused no . 2 Sanketh Poovaiah has filed writ petition no . 29586 - 29587/2018 (GM-
Res) without making proper and necessary parties accused no . 3 Puttaraju, hence non - joiner of necessary parties who are co - accused is fatal to the writ petition..
3. Accused no.1 and 2 obtained favourable impugned order of quashing F.I.R. in crime no . 22/2018 dated 28/02/2018 by commission of fraud, by mis - representation of facts , and in gross violations to 5 members constitutional bench held laws on mandatory Registration of F.I.R. by Jurisdictional P.S. when the first information received discloses commission of cognizable offences by the accused and preliminary enquiry in such cases not permissible as per Hon'ble Supreme Court held laws which are binding on all Courts including Supreme Court of India.
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WP No. 18820 of 20214. I state that the Government Advocate representing STATE by Seshadripuram P.S. has not submitted said 5 members constitutional Bench held decision, despite complainant furnished Xerox copy with the complaint dated 28/02/2018 .
5. I state that accused no.1 and 2 has not furnished in writ petition the material documentary evidence furnished with the complaint which prima facie establishes the alleged complaint against the accused.
6. I state that M / S Poovalah & Co is law firm, and the proprietor Ms. Saajan Poovaiah has presented the said writ petition Nos . 29586-29587 / 2018 against Bar Council Rules and in violations to Statutory Provisions under Advocates Act 1961, hence pleadings by laws firm supported by false, fabricated affidavit of accused no.1 and 2, hence vitiated.
7. I state that Jurisdictional P.S. Seshadripuram told me that there is blanket stay of investigation even against accused no . 3 to 5 as per impugned order, which is false and distorted information .
8. I state that Police Dairy and violations to procedure and the Supreme Court held laws will
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WP No. 18820 of 2021reveal that M/S Poovalah and Co has exercised undue influence and interfered in the administration of Justice under Criminal Jurisprudence.
9. An affidavit by accused no . 5 Shri Nanda Kumar, CEO of Nehru Nagari Co - Operative Bank furnished with the complaint is adequate evidence against accused no.1, accused no.2 and accused no.3, that during pendency of RFA No. 1253/2007 (Pa ) c/w RFA No.1282/2007 (Inj.) and on admission of appeals by Hon'ble High Court, the accused have illegally and against Statutory Provisions of Code of Civil Procedure withdraw the false, fabricated and got up documents marked as Ex.D - 1 to Ex.D - 13 documents in evidence in judicial Proceedings and raised huge loan to the extent of 25,00,000/- (Rupees Twenty Five Lakhs Only) on 2/5/2008 and suppressed and conducting malicious prosecution before High Court, and hoodwinking the Judicial Proceedings, hence Tantamount to Judicial Prosecution from 2/5/2008 as per affidavit evidence of accused no.5, and such offences of raising loan on false, fabricated and got up documentary evidence on entire suit schedule property without any record of rights are adequate and cogent evidence on record of Court , which cannot be termed as Civil Nature as classified in the
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WP No. 18820 of 2021B Report by the Jurisdictional P.S. without enquiring under criminal jurisprudence for nearly 3 years .
10. I state that for the above stated reasons the complainant has filed Complaint / Application under Section 340 r / w Section 195 and Section 482 CrPc 1973 and read with Article 215 and 226 of the Constitution of India with material documentary evidence with prayer for consideration of FULL COURT of Hon'ble High Court of Karnataka at Bangalore as per Document No.1 furnished with this Memo .
11. I adopt the affidavit furnished in document no.1 before Hon'ble High Court of Karnataka at Bangalore, for consideration of this 32nd A.C.M.M Court in the interest of Justice.
12. I state that the copy of Application with Annexure filed before Hon'ble High Court is furnished for perusal and consideration of this Hon'ble Court , which this Court be pleased to take on record in the above case .
13. PRAYER I pray before this Hon'ble Court that this Court be pleased to order Investigation in to the alleged complaint dated 28/02/2018 and the F.1.R. in Crime No.22 /2018 dated 28/02/2018 registered
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WP No. 18820 of 2021by the Jurisdictional P.S., Seshadripuram in accordance with Code of Criminal Procedure on the basis of documentary evidence prime facie discloses cognizable offences against the accused no .3 to 5."
and the memo furnished by the complainant, reads as follows:
"MEMO FURNISHING - SUPREME COURT AUTHORITY IN PROTEST MEMO The Complainant furnishes the following Hon'ble Supreme Court held decisions in support of protest memo filed against 'B' Report by jurisdictional P.S., Seshadripuram, Bangalore in Crime No.22/2018 dated 28/02/2018 without investigation despite prima facie established in respect of alleged offences against the accused no. 1 to 5 in the complaint and material documentary evidence furnished with the complaint, and despite furnishing 5 Members of Constitution Bench held decision of the Hon'ble Supreme Court, which is binding on all courts Including Supreme Court under Artide 141, 142 and 144 of the Constitution of India, which this Hon'ble Court be pleased to peruse and consider to order investigation of crime in accordance with Criminal Jurisprudence on its own merits in the interest of Justice .
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1. ( 2014 ) 2 SCC 1- In the matter of Lalita Kumari - Petitioner Verses Government of Uttar Pradesh & Others as respondents DO: 12/11/2013. Coram : Before P Satyashivam C.J. AND Dr. B.S. Chauhan, Ranjan P Desai , Ranjan Gogai AND S.A. Bobde JJ. In Writ Petition ( Crl.) No.68 of 2008.
2. ( 2017 ) 9 SCC 641- In the matter of Parbatbhai Aahir Allias Parbatbhai Bhimsindbhai Karmur & Others as Appellants VERSES State of Gujarat AND Another as Respondents . DOJ:
4/12/2017. Coram: Before Dipak Misra,. C.J. AND A.M. Khanwilkar AND Dr. D.Y. Chandrachud J.J. in Criminal Appeal No.1723 of 2017.
3. W. P. ( Civil ) No. 731 of 2018 in the matter of Sarvepalli Radhakrishnan University & Another as Petitioners Verses Union of India & Others as Respondents. DOJ : 17/01/2019 Coram : Before S.A. Bobde C.J. AND L. Nageswara Rao AND R. Subhash Reddy J.J.
4. Criminal Appeal No. 255 of 2019 in the matter of Sau Kamal Shivaji Pokarnekar as Appellants Verses The State of Maharastra & Ors as Respondents. DOJ : 12/02/2019. Coram : L. Nageswara Rao AND M.R. Shah J.J.
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5. ( 2009 ) 2 SCC 363 in the matter of Raghu Raj Singh Rousha as Appellant Verses Shivam Sundaram Promoters Pvt . Ltd. & Another as Respondents . DOJ : 17/12/2008. Coram : S.B. Sinha AND Cyriac Joseph. J.J .
I humbly pray before this Hon'ble Court to consider the above held laws of Hon'ble Supreme Court of India, as I place my reliance in support of my protest memo against B Repor , and said action against the Supreme Court held laws are in Contempt of Hon'ble Supreme Court of India.
6. The manner in which the learned Magistrate will have to consider a 'B' report is no longer res integra, as the Co-ordinate Bench of this Court in the case of DR. RAVI KUMAR VS. MRS. K.M.C. VASANTHA AND ANOTHER1 has delineated the principles of such consideration at the hands of the learned Magistrate, while dealing with the 'B' report. This Court has held as follows:
"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 1 ILR 2018 KAR 1725
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'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 between Abhinandan Jha v. Dinesh Mishra [AIR 1968 S.C. 117.] (para 15) and also Full Bench decision of Apex Court in between Kamalapati Trivedi v. State of West Bengal [(1980) 2 SCC 91.] (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec. 204 of Cr.
P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
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WP No. 18820 of 2021iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec. 200 Cr. P.C.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr. P.C. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under Section 190 read with 200 Cr. P.C. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complaint/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr. P.C., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr. P.C., once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) After taking such report under section 202 of Cr. P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no
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WP No. 18820 of 2021grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s. 203 of Cr. P.C. as the case may be.
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s. 204 of Cr. P.C. But, none of these procedures have been followed by the Learned Magistrate. On the other hand, as could be seen from the records, the Learned Magistrate even without rejecting the 'B' Summary Report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the Learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart.
6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the Learned Magistrate has committed a serious error in not passing any orders on the 'B' Summary Report before taking cognizance on the basis of the Protest Petition.
7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the Court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the Court. The Magistrate has to explore all the options as
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WP No. 18820 of 2021noted above in accordance with law at right stages, which has not been done in this particular case. The Learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the 'B' Summary Report, which is not proper and correct. He has to pass orders on the 'B' Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment.
8. The Learned Counsel for the petitioner has relied upon many rulings as to how the contents of the Protest Petition and the sworn statement of the complainant and statements of his witnesses have to be considered. There is no need to consider those rulings in view of the fact that the Learned Magistrate, has committed the above said serious procedural irregularities and defects which are incurable in nature, and on which ground itself the order is not sustainable."
7. On the bedrock of the principles so laid down by a Co-ordinate Bench of this Court is the present case is considered, it would on the face of it, fall foul of those principles so laid down, as there is no consideration by the learned Magistrate to the protest memo that is filed by the petitioner complainant. Therefore, the learned Magistrate will have to reconsider the matter from the stage of police filing the 'B' report strictly in consonance with the law laid down by this Court in the case of DR. RAVI KUMAR
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WP No. 18820 of 2021(supra) and pass appropriate orders in accordance with law.
8. It is needless to observe that the order shall bear application of mind and answer to all the contentions that is advanced by the petitioner in person.
With the aforesaid observations, the petition stands disposed.
All contentions of the petitioner that are urged in this petition shall remain open to be urged in appropriate proceedings either before the learned Magistrate or any judicial fora.
Sd/-
JUDGE SJK