IMPORTANT POINT
When cognizance is taken on the basis of protest petition filed by complainant party against final report submitted by police, Magistrate has to follow procedure of complaint case laid down u/s, 200, 202 & 204, Cr. P.C.

Headnote:Criminal Procedure Code, 1973 - Sections 190, 200, 202 & 204 - Case registered u/s. 147, 148, 149 & 307, I.P.C. on the basis of F.I.R. After investigation police submitted final report - Complainant filed protest petition along with affidavits of witnesses praying court to summon accused persons - On the basis of protest petition and affidavit cognziance taken by Magistrate u/s. 190(1)(b) and accused were summoned - Cognizance on the basis of protest report without following procedure prescribed under Chapter XV for complaint case is bad, liable to be set aside.
       Held: Thus it is clear that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204 Code of Criminal Procedure. In a case exclusively triable by the court of Sessions, he will require the complaint to examine all his witnesses on whom he places reliance. The copies of the statements etc. will have to be furnished to accused under Section 208, Cr. P.C. The main purpose of the provision of Sections 208, Cr. P.C. is to enable the accused to know what is the material against him. In case the protest petition is not treated as a complaint and straightway the cognizance is taken on the protest petition, then the procedure prescribed under Sections 200,202 and 204 of the Criminal Procedure Code will not be followed and the provisions of Section 208, Cr. P.C. will not be complied with. In that even the-case of the accused will be prejudiced and the accused will be denied of an opportunity to know the material against them and the very purpose of Section 208, Cr. P.C. will be frustrated.
       Now the result of the above analysis of the legal position is that the Magistrate has power to take cognizance under Sec. 190(1)(b) on the police report irrespective of the opinion of the Investigating Officer that prima facie no case is made, if on perusal of the police papers and statements of witnesses recorded under Sec. 161, Cr. P.C. he is satisfied that there is sufficient material to make out a prima facie case against the accused but straightway he cannot take cognizance on the basis of the protest petition, duly supported by the affidavits of the witnesses, without following the procedure prescribed under Chapter XV for a complaint case and since in the instant case he has not recorded the statements of the complaint and the witnesses before passing the impugned order, the order under challenge in the revision is liable to be set aside. (paras 8 & 9)
       Result: Petition allowed.

ORDER

Kundan Singh, J. - The main controversy involved in this revision centres round the scope of powers of the Magistrate under Sub-section (I) of Sec. 190 of the Code of Criminal Procedure on a protest petition, duly supported by the affidavits of the witnesses.

2. The present revision is directed against the order dated 8.9.1993 passed by the IX A.C.J.M., Allahabad in Criminal Case No. 869 of 1993 whereby the final report submitted by the Investigation Officer was rejected and the cognizance has been taken against the accused applicants summoning them under Sections 147, 148, 149& 307, I.P.C.

3. In short, the prosecution story as revealed by F.I.R., is that at about 8.00 p.m. on 20.4.1993, Om Shankar Pandey, the informant, his brother Arvind Kumar, and one Om Prakash were returning from Village Baghbana to Allahabad on a motor cycle. In the way, they met the 6 accused applicants, who were carrying with them guns and bombs. Accused Satendra Kumar fired a shot with his gun while the other accused hurled bombs on the complaint party but luckily they escaped and ran away from the place of occurrence leaving the motor cycle there. The complaint party lodged an F.I.R. of that incident at police station Ghoorpur, Allahabad, on the same night, i.e. 20.4.1993. The matter was investigated and police submitted a final report in the court. The complaint filed protest petition along with the affidavits of Om Prakash, Arvind Kumar and Om Shankar Pandey alleging that the final report be rejected and the accused be summoned for the offences punishable under Sections 147, 148, 149 & 307, I.P.C. It has also been averred in those affidavits that even prior to the submission of the final report the Investigating Officer was siding with the accused persons and the complaint party had apprehension that he would not take any action against them on the basis of the F.I.R. The IXth Additional C.J.M. Allahabad has not accepted the final report and has summoned the accused applicants taking cognizance under Sec. 190(l)(a) Cr. P.C. by order dated 8.9.1993 on the basis of the protest petition, supported by the affidavits of the witnesses.

4. Heard learned counsel for the parties.

The learned counsel for the applicants contended that the learned Magistrate has committed an error on the face of record in taking cognizance of the offences only on the basis of the protest petition and the affidavits filed in support thereof. No doubt the Magistrate is empowered to take cognizance on the basis of the police report after rejection the opinion of the Investigating Officer that no prima facie case is made out incase the material collected and statements of witnesses recorded under Sec. 161, Cr. P.C. disclosed the commission of offence and he can also ignore protest petition and summon the accused persons but he is also competent to take congizance on the basis of protest petition provided he examines the complainant and his witnesses under Section 200 and 202, Cr. P.C. as provided in Chapter XV of the Criminal Procedure Code. Matter compliance of the provisions of Sections 200 and 202 of the Criminal Procedure Code, the Magistrate is empowered to issue process under Sec. 204, Cr. P.C., if he is satisfied that there is sufficient ground for proceeding against the accused persons.

5. The sheet anchor of the argument of the learned counsel for the complainant was Sec. 190, Cr. P.C. and on its strength he argued that the Magistrate was competent to take cognizance on the basis of protest petition under the Clause (a) of Sub Sec. (1) of Sec. 190 of the Code of Criminal Procedure and he rightly summoned accused persons straightway and he was not required to follow the procedure laid down under Sec. 200 and 202 of the Criminal Procedure Code on the anology that the provisions of Chapter XIV which includes the provisions of Sec. 190, Cr. P.C. are independent and they are not subject to the procedure laid down in the Chapter XV which relates to the cognizance of the

Click Here to Read the rest of this document

ALLAHABAD HIGH COURTKundan Singh, J.Ashok & Ors. - ApplicantsversusState of D.P. & Anr. - Opp. PartiesCri. Revision No. 1504 of 1993Decided on 20.12.1993Counsel for the parties:For the Appellants: D. S. Tiwari.For the Opp. Parties: Jyoti Bharti Goswami, AGA & V. K. Shukla.

IMPORTANT POINTWhen cognizance is taken on the basis of protest petition filed by complainant party against final report submitted by police, Magistrate has to follow procedure of complaint case laid down u/s, 200, 202 & 204, Cr. P.C.

ALLAHABAD HIGH COURT
Kundan Singh, J.
Ashok & Ors. - Applicants
versus
State of D.P. & Anr. - Opp. Parties
Cri. Revision No. 1504 of 1993
Decided on 20.12.1993
Counsel for the parties:
For the Appellants: D. S. Tiwari.
For the Opp. Parties: Jyoti Bharti Goswami, AGA & V. K. Shukla.

IMPORTANT POINT
When cognizance is taken on the basis of protest petition filed by complainant party against final report submitted by police, Magistrate has to follow procedure of complaint case laid down u/s, 200, 202 & 204, Cr. P.C.