The main legal point established in the judgment is the entitlement of the informant to notice and an opportunity to be heard at the time of consideration of the police report, as well as the Magistrate's discretion in accepting the police report.

ARIJIT PASAYAT, J.

( 1 ) LEAVE granted.

( 2 ) CHALLENGE in this appeal is to the order passed by a division Bench of the Allahabad High Court in Criminal Misc. Writ Petition No. 13182 of 2006 which was filed under Article 226 of the Constitution of India, 1950 (in short the

"constitution" ). In the writ petition, the writ petitioner, i. e. respondent No. 1, had prayed for a direction to the investigating agency to proceed with "fair and proper investigation in case No. 147 of 2006 under Section 307 of the indian Penal Code, 1860 (in short the "ipc") registered at Police station Nauchandi, district Meerut. The writ petitioner alleged that his son had sustained fire arm injuries at the hands of some unknown miscreants on 30. 3. 2006 at 10. 00 a. m. and in regard to it a case was registered. Initially, Sri R. P. Singh, station Officer, Nauchandi had recorded the statement of the informant and the injured-Dhananjay who had categorically stated that the present appellants had caused fire arm injuries on him. Subsequently, the investigation was undertaken by one Chet Singh, SI who submitted the final report excluding the afore-named accused i. e. the present appellants in the offence. The final report was on the basis of alibi claimed by the accused persons. The High Court was of the view that from the beginning the writ petitioner was apprehending that there would be no fair and proper investigation into the case as the accused persons are influential persons. The High Court was of the view that whether any alibi can be accepted is for the trial court to decide. Accordingly, the High Court inter alia gave the following directions:

"in above view of the matter the petitioner is directed to approach the learned Magistrate concerned within 10 days and file protest petition and the learned Magistrate concerned taking into account the statement of the injured and the injury report press a proper and appropriate order in accordance with law within a week thereafter and till then the final report No. 32 of 2006 shall not be given effect to and in case the final report has already been accepted the same shall be treated to have been rejected. This Court is anxious to know the order passed by the learned Magistrate, list this writ petition before us on 20th April, 2007 for the report of the learned Magistrate concerned.

( 3 ) IN support of the appeal, learned counsel for the appellants submitted that the directions given by the High court are not sustainable in law. The course to be adopted when the final report is submitted has been indicated by this court in several cases. In this case what the High Court indirectly directed was rejection of the final report as would be evident from the fact that the High Court expressed its anxiety to know the order passed by the Magistrate and kept the writ petition pending for report of the concerned learned magistrate. It was submitted that in view of the clear indication of view made by the High Court, the trial court was bound to be influenced. In fact the order by the High Court was passed on 16. 3. 2007. This Court directed interim stay of the High Court"s order by order dated 20th April, 2007. Before the said order could be passed, the trial court in fact had rejected the final report by order dated 16th April, 2007. In the said order, the learned Magistrate categorically referred to the order passed by the High Court. Therefore, there was no independent application of mind.

( 4 ) IN response, learned counsel for respondent No. 1 has submitted that the Magistrate has decided the matter uninfluenced by any observation of the High Court and he exercised the jurisdiction de hors the High Court"s order.

( 5 ) THERE is no provision in the Code of Criminal Procedure, 1973 (in short the "code") to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been conside