( 1 ) THE petitioner who is an accused in C. C. No. 376/95 for offences under Sections 341, 324, 448 and 506, IPC pending on the file of the JMFC, II Court, Mysore has filed the petition under Section 482, Cr. P. C. challenging the legality of the order dated 28-5-1991 of the learned Magistrate taking cognizance of the said offences and directing issue of summons to the accused; and praying for quashing of the entire criminal proceedings against him and the order dated 19-9-1995 passed by the III Addl. Dist. and Sessions Judge, Mysore in Cr. R. P. No. 52/91, affirming the order of the learned Magistrate is also challenged by him. ( 2 ) A few undisputed facts necessary for the disposal of the petition may be stated as under :at the relevant time the accused was working as S. I. of police in N. R. Police Station, Mysore, Respondent No. 1 complainant was working as a Physical Education Teacher in Government Higher Secondary School, B. S. Mohalla, Mysore. His wife was working as a staff Nurse at P. K. P. P. Hospital, Mysore. He was living with his wife and his two minor children in the hospital quarters No. 16. He sent his complaint dated 8-2-1989 by registered post addressed to the S. I. of Police V. V. Puram police station, Mysore, from the Government K. R. Hospital, Bangalore where he was taking treatment for his injuries. That complaint was received on 10-2-1989 by PSI of V. V. Puram Police station. That was a complaint against accused petitioner given by the complainant alleging commission of offences of criminal trespass, causing serious hurt to him, wrongful confinement, criminal intimidation to kill him and of unlawful assembly. The serious allegations made in the complaint by accused are to the effect that on 5-2-1989 at about 7. 30 a. m. when he was still in his house the accused trespassed into his house in civil dress and started behaving with him in a wild manner abusing in vulgar language and mercilessly beating him with hands,boots and a lathi and thereby inflicting injuries on his face, head, stomach and all over the body. Then he directed the other policemen who had come along with him to take the accused dragging from his house and to put him in the police van that was parked nearby. Then he directed the other policemen who had come along with him to take the accused dragging from his house and to put him in the police van that was parked nearby. He was thus removed from the house to the van and was taken to K. R. Hospital and was admitted there for treatment of his said injuries. It is further stated in para 1 of his complaint given to the police that telephonic information of the incident was given by the complainant to V. V. Puram police station from the hospital on 5-2-1989, 6-2-1989 and 7-2-1989. He also sent his written complaint dated 8-2-1989 by registered post suspecting that no action would be taken by the concerned police because the accused himself was a police official. ( 3 ) ON the said complaint dated 8-2-1989 the PSI of V. V. Puram police station Venkatesh, registered the crime No. 13/89 against accused under Sections 448, 381, 324 and 506, IPC. FIR was despatched along with the complaint to the concerned learned Magistrate. After the investigation the said PSI, Venkatesh submitted 'b' report to the learned Magistrate on 21-1-1992 in the said Crime No. 13/89. In the meanwhile a notice was also issued to the complainant informing him that the 'b' report was going to be submitted to the learned Magistrate. In response to the said notice the complainant appeared on 16-1-1992 and filed his objection statement dated 13-1-1992 protesting against the said 'b' report and undertaking to prove the alleged offences against accused. In para 4 of the objection statement he stated :"to avoid repetition, the allegations made and the facts averred in the FIR (Complaint dated 8-2-89) may kindly be read part and parcel with the averments of this objections to the 'b' report. "thereafter, the learned Magistrate proceeded to examine and record the sworn statement of the complainant and all his five witnesses. Then he took cognizance of the offences under Sections 341, 324, 448 and 506, IPC against the accused by his impugned order dated 21-8-1995. In order to determine the validity or otherwise of the impugned order it is essential to reproduce the whole of the order which is as quoted below :"on the basis of the complaint filed by one S. Rajendra Peter, VV Puram Police have registered the case in Cr. No. 13/89 and submitted FIR to the Court on 13-2-1989. In order to determine the validity or otherwise of the impugned order it is essential to reproduce the whole of the order which is as quoted below :"on the basis of the complaint filed by one S. Rajendra Peter, VV Puram Police have registered the case in Cr. No. 13/89 and submitted FIR to the Court on 13-2-1989. That after investigation, the concerned Police filed B-report to this Court and notice was also issued by the concerned police to the complainant regarding filing of B-report. This B-report was protested by the complainant by filing objection to B report. 2. In order to substantiate the contention taken by the complainant, complainant himself as PW 1 and examined Sowbhagyavathi, Annamma, Subbalakshmi, Rajashekar, Nanjamma respectively as PWs 2 to 6 on his behalf. 3. I have perused the papers and the objection filed by the Complainant and the evidence of PWs 1 to 6 and other documents available in the record. From the perusal of these materials, I am of the opinion that the complainant has made out a prima facie case against accused under Sections 448, 341, 324, 506, IPC. On perusing police report there is no ground to accept B-report and there are sufficient grounds to take cognizance against accused. In the result, I pass the following :orderb-report submitted by VV Puram police, Mysore is hereby rejected. Cognizance taken under S. 190, Cr. P. C. against accused A. K. Suresh for the offences u/ss. 341, 324, 448, 506, IPC. Register the case in register No. 3. Issue summons to the accused after receiving process-fee. Call on 15-3-1995. JMFC (II COURT)MYSORE. " ( 4 ) MR. Chandramouli, learned counsel for petitioner, challenging the legality of the impugned order submitted that the same is patently illegal in that the learned Magistrate had no power to take cognizance of the offences after recording the sworn statement of the complainant and his witnesses and on the basis of such statements. JMFC (II COURT)MYSORE. " ( 4 ) MR. Chandramouli, learned counsel for petitioner, challenging the legality of the impugned order submitted that the same is patently illegal in that the learned Magistrate had no power to take cognizance of the offences after recording the sworn statement of the complainant and his witnesses and on the basis of such statements. His further submission was that the learned Magistrate had to decide about taking cognizance or otherwise of any of the alleged offences against the accused solely on the basis of the 'b' report submitted by PSI of VV Puram P. S. Besides, it was also submitted by Chandramouli that the cognizance of the offences shown to have been taken by the learned Magistrate after recording the sworn statement of the complainant and the witnesses was patently illegal and also that there was no complaint before him in the strict sense of the term enabling him to take cognizance of the offences under any of the clauses of Section 190, Cr. P. C. It was also urged by Sri Mouli that there was no list of witnesses furnished by the complainant either in his complaint or in the said protest memo which was an imperative requirement of law for the learned Magistrate to issue process against the accused. ( 5 ) SUPPORT for these submission was drawn by him from 2 decisions of this Court in State by A. Mahadeva v. Papireddy, ILR 1988 Karnataka 666, and Keshava Murthy v. Veeraiah, ILR 1987 Kar 2285. ( 6 ) MR. Ravi B. Naik, learned Counsel appearing for Respondent No. 1 argued in support of the impugned order of the Learned Magistrate. Reliance was placed by him on a Supreme Court decision in M/s. India Carat Private Limited v. State of Karnataka, ILR 1989 Kar 1486 : (1989 Cri LJ 963 ). ( 7 ) IN that case of M/s. India Carat Private Limited, supra, also a complaint was given to the police alleging commission of offences under Sections 408 and 420, IPC by the accused therein. On that complaint, Crime No. 140/1980 was booked by the police against accused and after investigation the I. O. therein submitted a 'b Report' to the concerned magistrate stating that the dispute between the parties, was of civil in nature. On that complaint, Crime No. 140/1980 was booked by the police against accused and after investigation the I. O. therein submitted a 'b Report' to the concerned magistrate stating that the dispute between the parties, was of civil in nature. The complainant therein filed his protest petition requesting the magistrate to quash the 'b Report' and permit him to prove the commission of the said offence by the accused. On Examination of the said 'b Report' the Learned Magistrate took the view that a prima facie case was made out by the petitioner and therefore he directed Registration of case on his file for the said offences against accused and ordered issue of summons to him under Section 204, Cr. P. C. That order of the Learned Magistrate was challenged by the accused therein under Section 482, Cr. P. C. before this Court. That petition came to be allowed and the order of the Learned Magistrate was set aside by on the ground that the magistrate did not follow the procedure laid down by the Code of Criminal Procedure for taking cognizance of the case and issuing process to the accused after the police sent a 'b Report' in the case. This Court held therein that on receipt of 'b Report' the magistrate should have examined the complainant on oath and his witnesses and on that material he should have decided whether a case against accused should be registered and processes be issued to him. Repelling that view of this Court, the Supreme Court has observed at page-15 of its judgment :-"15. The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigating and take cognizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190 (1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190 (1) (a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him. " ( 8 ) AS regards the stage of cognizance of an offence this Court has consistently held that the cognizance contemplated under Sections 190 and 200, Cr. P. C. must precede the act of the Magistrate in recording the sworn statements of the complainant and his witnesses. Where on a private complaint the Magistrate straightway proceeds to examine the complainant and his witnesses and thereafter comes to the conclusion that it was a fit case to take cognizance of the alleged offence against the accused, this procedure is held opposed to the mandatory provisions of law in Cr. P. C. (vide Revanappa v. S. N. Raghunath reported in 1982 (2) KLJ 350 : (1982 Cri LJ 321) (Division Bench) State by A. Mahadeva v. Papireddy reported in ILR 1988 (1) Karnataka 666. It is also laid down by this Court in its decision in Keshava Murthy v. Veeraiah reported in ILR 1987 Kar 2285, followed in Ramaiah v. Lakshmana Gowda reported in ILR 1995 Kar 2967 that in view of Section 204 (2), Cr. P. C. the filing of the list of witnesses by the complainant before issue of process by the Magistrate against an accused person, is a mandatory requirement of law. ( 9 ) CONSIDERING the relevant provisions of the law in Sections 190, 200, 202 and 204 of Cr. P. C. the filing of the list of witnesses by the complainant before issue of process by the Magistrate against an accused person, is a mandatory requirement of law. ( 9 ) CONSIDERING the relevant provisions of the law in Sections 190, 200, 202 and 204 of Cr. P. C. and in the light of the decision of the Supreme Court in M/s. India Carat Private Limited (supra) it can be safely stated and held that the Learned trial Magistrate was not bound to accept the 'b Report' submitted by the concerned police on the said complaint of the complainant herein and that it was well within his powers to proceed to take cognizance of the alleged offences either on the basis of the material that was made available to him in the form of the said 'b Report' or on any complaint made by the complainant to him. ( 10 ) IN the instant case the complainant has in his said protest memo filed before the Learned Magistrate opposing the said 'b Report' undertaking to prove commission of the alleged offences against accused, categorically stated that his said complaint may be treated as part and parcel of the said protest memo since to repeat the allegations contained therein over again in that protest memo was an idle formality. In that view of facts and circumstances there was no legal impediment whosoever for the Learned Magistrate to treat the said protest memo together with the said complaint of the complainant which was given to the police as a complaint made before him under Section 200, Cr. P. C. and to proceed to decide to take or not to take cognizance of alleged offences on the basis of the allegations contained therein. Then, in view of the pronouncements of this Court referred to above relating to the stage at which cognizance of an alleged offence could be taken by the Magistrate, and the imperative requirement of filing of the list of witnesses by the complainant before the Magistrate decided to issue process against accused, it was essential that the Magistrate should have applied his mind to the allegations contained in the said complaint and decided whether or not to take cognizance of the alleged offences against accused before he proceed to record the sworn statements of the complainant and his witnesses. Furthermore, he has also erred in law in directing issue of process to accused without the list of witnesses having been filed first by the complainant. Therefore, on these 2 scores the impugned order of the Learned Magistrate is unsustainable and the matter has to be remitted to him to rectify the defects and then proceed further according to law. ( 11 ) THE petition is allowed. ( 12 ) FOR the reasons stated aforesaid, the impugned order dated 28-1-1995 of the Learned Magistrate is set-aside and the matter is remitted to him with the direction to proceed and decide whether to take or not to take cognizance of the alleged offences against accused on the basis of the said complaint read together with the protest memo of the complainant, as also the 'b Report' of the police; and then to proceed further according to law and in the light of the observations made hereinabove. Petition allowed. --- *** --- .