ORDER
U.S. Tripathi, J.
1. This application under Section 482, Cr. P. C. has been filed for quashing the entire proceedings of Criminal Case No. 1255 of 2002, Yogendra v. Mahendra and others under Sections 323, 307, 452 and 504, I.P.C., P. S. Pahasu, district Bulandshahar pending in the Court of Additional Civil Judge (Junior Division), Khurja (Bulandshahar) and for setting aside the order dated 2-2-2002 passed by Additional Sessions Judge, Court No. 4, Bulandshahar in Criminal Revision No. 77 of 2001.
2. The facts giving rise to this application, briefly narrated, are that on 2-4-1998 Rakesh Kumar Sharma applicant No. 2 lodged a report against Yogendra opposite party No. 2 and three other persons under Sections 323, 504 and 427, I.P.C. with the allegations that on 1-4-1998 at about 6 p.m. while he was returning to his house from his duties and reached in front of house of Suresh Chandra, the accused of the said case namely Suresh Chandra, Pintoo and Yograj caused injuries on him with lathi Danda and also extended threats. During Marpit a sum of Rs. 6,000/- which he was keeping in his pocket had fallen down and could not be traced. On the basis of above report a non-cognizable report under Sections 323, 504, 427, I.P.C. was written at P.S. Pahasu. Subsequently, the case was altered under Sections 308 and 325, I.P.C. and registered at crime No. 64 of 1998 on 28-4-1998 and was investigated. The police after investigation submitted charge-sheet against Suresh Chandra and Devraj on 13-5-1998 and latter on supplementary charge-sheet was submitted against Yogendra opposite party No. 2 and Pintoo on 14-6-1998.
3. On 2-4-1998 the opposite party No. 2 moved an application before the Superintendent of Police for registering as and against the applicants with the allegations that on 2-4-1998 when he was taking his food at his house at about 9 a.m., the applicants armed with knife, sariya and lathi came to his house and started abusing him and on his objection caused injuries on him with knife, sariya and lathi. The Superintendent of Police ordered registration of case on the above application. Accordingly, an F.I.R., was lodged and a case at crime No. 58 of 1998 under Sections 452, 307, 323, 504, I.P.C. was registered against the applicants on 13-4-1998. After investigation, the police submitted final report in the said case crime No. 58 of 1998.
4. On the receipt of the final report, the learned Magistrate issued notice to the complainant opposite party No. 2, who filed protest petition. The learned Magistrate on considering the evidence collected during investigation and the protest petition, allowed the protest petition, rejected the final report and summoned the applicants for trial under Sections 307, 323, 452 and 504, I.P.C. vide order dated 8-1-1999.
5. Thereafter, the applicants moved protest petition under Section 204, Cr, P. C, for recalling the order dated 8-1-1999 on the ground that only two affidavits were filed from the side of complainant and witnesses and doctor were not examined. The learned Magistrate on considering the above application held that affidavit of only two witnesses were filed, the other witnesses and the doctor were not examined. The case was triable by Court of Sessions and therefore all the witnesses were to be examined. With these findings he allowed the above petition and recalled summoning order dated 8-1-1999, vide order dated 23-10-2000.
6. Aggrieved with the above order dated 23-10-2000, the opposite party No. 2 filed Criminal Revision No. 77 of 2001. The learned Additional Sessions Judge, Court No. 4, who decided the revision held that by order dated 8-1-1999 the learned Magistrate had taken cognizance of the case under Section 190(1)(b), Cr. P. C. rejecting the final report and therefore he was not required to adopt the procedure of complaint case, to examine all the witnesses of fact, as required by proviso to Section 202, Cr. P. C. and therefore, the learned Magistrate wrongly set aside the order dated 8-1-1999. With these findings he allowed the revision by order dated 2-2-2000 and set aside the order rejected 23-10-2000 passed by the Magistrate.
7. The above order of the Revisional Court has been challenged in this application under Section 482, Cr. P. C. and further relief has been sought for quashing the criminal proceeding.
8. Heard Sri Sunil Kumar, learned counsel for the applicant, learned A.G.A. and perused the record.
9. The learned counsel for the applicant contended that the F.I.R. lodged by opposite party No. 2 was mala fide as counter blast of report lodged by applicant No. 2 and to save his liability in the said case. That on submission of final report, the Magistrate was empowered to take cognizance only under Section 190(1)(a), Cr. P. C. after adopting procedure of complaint case and recording evidence under Sections 200 and 202, Cr. P. C. He further contended that on receipt of final report notice was issued to the complainant, which indicated that the Magistrate was not satisfied with the evidence collected during investigation and that cognizance could not be taken on protest petition, as there is no such provision in the Cr. P. C. He further contended that protest petition comes under the definition of complaint as given in Section 2(d) of Cr. P. C., therefore, before taking cognizance on it, the Magistrate had to adopt procedure contained in Chapter XV of the Cr. P. C. and that the Revisional Court wrongly allowed the revision without issuing notice to applicants.
10. On the other hand, the learned A.G.A. contended that the learned Magistrate had jurisdiction to summon the applicants after taking cognizance under Section 190(l)(b), Cr. P. C. and subsequent protest petition filed by the applicants was not maintainable in view of Full Bench decision of this Court in Ranjeet Singh v. State of U. P., (2000) 40 All Cri C 342 : (2000 All LJ 898).
11. I have thoroughly considered the contentions of the learned counsel for the applicants.
12. The learned Magistrate on receiving final report submitted in the case issued notice to the opposite party No. 4, the complainant of the case in view of decision of the Apex Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 though no such specific provision is contained in the Cr. P. C. The question as to what is the position when the Magistrate is dealing with the report submitted by the police under Section 173, Cr. P. G. has been answered by the Apex Court in the case of Abhinandan Jha v. Dinesh Mishra (supra) and it was held that the Magistrate on receiving of such report may accept the final report and close the proceeding. But there may be instances when the Magistrate may take a view on consideration of the final report; that the opinion formed by the police is not based on full and complete investigation in which case, the Magistrate will have ample jurisdiction to give directions to the police under Section 156(3), Cr. P. C. i.e. if the Magistrate feels after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct police to make further investigation under Section 156(3), Cr. P. C. The police after such further investigation may submit a charge sheet or again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms opinion that the facts set out in the final report constitute an offence he can take cognizance of the offence, under Section 190(1), Cr. P. C., notwithstanding the contrary opinion of the police expressed in the final report. It was further held in the said case that it is open to the Magistrate to treat the respective protest petitions as complaint and take further proceedings according to law.
13. The above view of Apex Court was again reiterated in the case of Rupan Deol Bajaj (Mrs.) v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 : (AIR 1996 SC 309) and held as below:–
” “In Abhinandan Jha v. Dinesh Mishra (AIR 1968 SC 117) (supra) the question arose whether a Magistrate to whom a report under Section 173(1), Cr.P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet on his disagreeing with that report. In answering the question this Court first observed that the use of the words “may take cognizance of any offence” in Sub-section (1) of Section 190, Cr.P.C. imports the exercise of “judicial discretion” and the Magistrate who receives the report under Section 173, Cr.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question passed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge sheet but it was open to the Magistrate to agree or disagree with the police report, if he agreed with the report that there was 110 case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). It was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof notwithstanding contrary opinion of the police expressed in the report”
14. Thus, it is settled view that the Magistrate on receipt of final report is not debarred from taking cognizance under Section 190(1)(b), Cr.P.C. and he has not to adopt procedure of complaint case. Therefore, the contention of the learned counsel for the applicants that on receipt of final report, the Magistrate can only take cognizance after adopting procedure of complaint case under Section 190(1)(a), Cr.P.C. is not correct.
15. The next contention of the learned counsel for the applicants that the protest petition is complaint as defined under Section 2(d) of the Cr.P.C. has also no force, as a complaint should contain the 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. It is true that there is no specific provision in the Cr.P.C. for filing protest petition. As per direction of the Apex Court, the Magistrate had to issue a notice to the complainant on receipt of final report and may pass order after considering the protest petition. The best precedence on the permissibility of preferring protest petition is reported in the decision in Abhinandan Jha, (AIR 1968 SC 117) (supra) wherein the practice of filing protest petition against Final Report has been specifically noted and countenanced by the Hon’ble Supreme Court.
16. The notice to the complainant before accepting final report has been made mandatory by the direction of the Apex Court and therefore it is fallacious to say that issuance of notice indicated that the Magistrate was not satisfied that a prima facie case was made out.
17. In these circumstances, the Magistrate, vide order dated 8-1-1999 had rightly taken cognizance rejecting the final report, under Section 190(1)(b), Cr.P.C. i.e. on police report and not on complaint and he was not required to follow the procedure of complaint case.
18. After passing of the order dated 8-1-1999 the applicants/accused filed protest petition probably in view of the Division Bench decision of this Court in Kailash Chaudhary v. State of U.P. (1993) 3 All Cri 664 : (1994 All LJ 174). But the above decision in Kailash Chaudhary’s case was not found correct in Full Bench decision of this Court in Ranjeet Singh v. State of U.P. (2000 All LJ 898) (supra) and therefore the applicants had no right to file protest petition on summoning them rather they had to wait to the stage of charge to show that no offence was made out against them.
19. The learned Magistrate was also not justified while recalling the order dated 8-1-1999 on the ground that since the case was exclusively triable by the Court of Sessions, all the witnesses have to be examined. The above observation was probably in view of proviso to Section 202, Cr.P.C. But the above procedure has to be adopted in complaint case. As held above cognizance of the case was taken under Section 190(1)(b) Cr.P.C. and therefore provisions contained in proviso to Section 202, Cr.P.C. is not applicable in this case. Therefore, the Revisional Court rightly held that the order of the Magistrate dated 23-10-2000 by which he recalled the order dated 8-1-1999 was not in accordance with law.
20. The next contention of the learned counsel for the applicants that the Revisional Court wrongly allowed the revision without issuing notice to the applicants is also not supported by the record, as the revision order itself shows that notices were issued to the applicants (opposite parties to the said revision) but despite of service of notice none appeared, (vide paragraph 3 of the judgment of the Revisional Court).
21. In view of above discussions and observations I find that the impugned orders as well as Criminal Proceedings in the Criminal Case are not liable to be quashed.
22. The application, therefore, has no force and is, accordingly, rejected.