ORDER
I.P. Singh, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). It is directed against the order dated 10.4.2002 passed in Cr. Rev. No. 89 of 2001 by the learned Sessions Judge, Katihar whereby and whereunder he set aside the order dated 3.8.2001 passed by the learned Chief Judicial Magistrate, Katihar in protest/Complaint Case No. 367/2000 dismissing the complaint petition under Section 203 of the Code.
2. It appears that opposite party No. 2, Deepak Chandra Das had filed a Complaint Case No. 452 A/1998 against the present petitioners. On receiving this complaint petition the learned Chief Judicial Magistrate, Katihar sent it to the police station for lodging an FIR and for investigation. The police registered Barsoi P.S.-Case No. 32/1999 on the basis of this complaint petition. After completion of investigation the police found the prosecution case false and concocted and recommended and for action under Sections 182 and 211 of the Indian Penal Code against opposite party No. 2. The learned Chief Judicial Magistrate accepted this final report submitted by the police. He, however, initiated an enquiry under Section 202 of the Code on the basis of a protest petition (C.A. No. 367/2000) filed against the final report submitted by the police. Subsequently after holding an enquiry under Section 202 of the Code the learned Chief Judicial Magistrate dismissed the complaint petition under Section 203 of the Code. Against this order of dismissal Cr. Revision No. 89 of 2001 was filed which was heard and disposed of by the learned Sessions Judge by passing the impugned order in which he directed that the complainant should be given a chance to make necessary amendment in the complaint petition for removing the technical defects. It is against this order that the present criminal miscellaneous petition has been filed.
3. From the facts stated in the present application it appears that the parties are on litigating terms from before and several cases have been filed on behalf of the opposite party No. 2 as also on behalf of the victim girl China Das. For the disposal of the present application I am not required to give the details of those cases. As stated above Complaint Cases No. 452 A/1998 was filed by opposite party No. 2 in the Court of the Chief Judicial Magistrate, Katihar on 4.4.1998 in which the following prayer has been made:
“It is, therefore, prayed that Honour would be pleased to forward the petition of complaint to the Officer Incharge Barsoi with a direction to institute FIR and to investigate the case against the accused persons through the Superintendent of Police, Katihar.”
In view of this prayer the complaint petition was sent to Barsoi police station where the FIR was drawn up on the basis of this complaint petition and the police registered it as Barsoi P.S. Case No. 32/1999. The police, however, after completing the investigations submitted report in final form recommending to initiate a proceeding under Sections 182 and 211 of the Indian Penal Code against opposite party No. 2.
4. It appears that opposite party No. 2 filed a protest petition against the final report submitted by the police which was registered as C.A. No. 367 of 2000. In this protest petition dated 5.8.1999 the following prayer has been made:–
“It is, therefore, prayed that your Honour would be pleased to keep this protest petition on record for furure reference.”
5. After filing of this protest petition which was treated to be a complaint petition opposite party no. 2 was examined on solemn affirmation. An enquiry under Section 202 of the Code was held and finally the learned Chief Judicial Magistrate by his order dated 3.8.2001 dismissed the complaint petition merely on the ground that the protest petition does not come within the definition of the word “complaint” as defined in Section 2(d) of the Code. As stated above against this order Cr. Revision No. 89/2001 was filed which was heard and disposed of by the order dated 10.4.2002 (impugned order) passed by the learned Sessions Judge by which he has set aside the order of dismissal of the complaint case passed by the learned Chief Judicial Magistrate and directed that the complainant be given a chance to make necessary amendments in the complaint by removing technical defects in it.
6. This takes us to the consideration of the question as what is a complaint petition within the meaning of its definition ? In this connection my attention has been drawn to Section 2(d) of the Code which runs as follows:–
2(d). “complaint” 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. Explanation.–A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.”
7. Relying on this definition on of the word “complaint” the learned Chief Judicial Magistrate has observed in his order that the protest petition filed will not come within the definition of the complaint as noticed above. It was on this ground also he dismissed the complaint petition under Section 203 of the Code.
8. This takes us to the consideration of the fact what is a protest petition. It may be stated here that a protest petition has now here been defined in the Code but has been accepted to be a document of consequence in various decisions of this Court as well as the Hon’ble Supreme Court. In this connection a reference may be made to the case of Rameshwar Prasad v. Bhatu Mahton and Ors., AIR 1958 Patna 11. This is a Bench decision of this Court (Sahai and Raj Kishore Prasad, JJ.). In this decision In paragraph 2 it has been observed as follows:–
“The entire definition makes it clear that a petition will be treated to be a complaint only when there is an accusation against some person and the prayer is for taking action as upon a complaint under Sections 200 to 204 of the Code of Criminal Procedure.”
As has been noticed above in the present protest petition no prayer has been made to take action under Sections 200 to 204 of the Code. On the other hand the prayer has been made to keep the protest petition on record for future action. Thus, obviously this protest petition can not be treated to be a complaint petition within the meaning of its definition as noticed above.
9. This view finds support from a decision of the Hon’ble Supreme Court in the case of Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda and Ors., AIR 1970 SC 1153. I had occasion to consider the true scope of a protest petition in the case of Rinku Mishra v. The State of Bihar and Ors., 2001 (1) PLJR 420, in which the true scope of a protest petition has been determined by me.
10. From what has been stated above it becomes clear that the present petition filed against the police investigation can not be termed as a protest petition or a complaint petition. In the case of Sarju Ram v. Harihar Ram Tewary and Ors., 1970 Cr LJ 1117, it has been held by this Court that if a person is aggrieved by the police investigation or the final report and intends to move the Magistrate for taking cognizance of the offence on the facts stated in the police report or for directing further investigation then it is a protest petition, and the Magistrate will dispose it of in the manner he thinks fit. If he (informant) lodges the complaint asking the Magistrate to proceed with the case as a complaint case then he should more fully comply with the provisions of Section 4(1) (h) old 2(d) new. In that situation the Magistrate is bound to examine the complaint on solemn affirmation under Section 200 of the Code or to take cognizance or to order enquiry under Section 202 of the Code.
11. In the present case as has been noticed above the prayer made in the protest petition is such that it can not be treated to be a complaint petition. The only prayer made in it is that this protest petition be kept on the record for future reference. Earlier also the complaint petition on the basis of which Complaint Case No. 452 CA/1998 was instituted the prayer made was to forward the petitioner to the Officer incharge, Barsoi police station with a direction to institute an FIR and to investigate a case.
12. Under this circumstance it becomes perfectly clear to me that the protest petition filed before the learned Chief Judicial Magistrate could hot have been treated to a complaint petition within the meaning of Section 2(d) of the Code and the learned Chief Judicial Magistrate has correctly come this to conclusion.
13. From the impugned order it appears that the learned sessions Judge has set aside the order of dismissal passed under Section 203 of the Code by the learned Chief Judicial Magistrate. He has further directed that the complainant be given a chance to make necessary amendment in the complaint petition by removing the technical defect in it. It may be stated here that the learned Sessions Judge was hearing a criminal revision against the order passed by the learned Chief Judicial Magistrate in Complaint Case No. 367/2000 in which he has held that as per the definition of word “complaint” the present petition can not be treated to a complaint petition which was dismissed under Section 203 of the Code. It was this finding by the learned Chief Judicial Magistrate that has been challenged in the criminal revision before the learned Sessions Judge. Instead of giving judicial finding about the correctness or otherwise of the order passed by the learned Chief Judicial Magistrate the learned Sessions Judge has adopted a procedure unknown to law, namely that he directed the learned Chief Judicial Magistrate to give an opportunity to the complainant to make necessary amendments in the complaint petition by removing the technical defects. Any such order does not appear to be approved by law on the subject and it is not known under that circumstance the learned Sessions Judge had passed the aforesaid order. The impugned order, therefore, can not be sustained in the eyes of law and is liable to be set aside.
14. In the result this application is allowed and the impugned order is quashed.