M.P.Varma, J.

1. In this application the learned Advocate Sri Wasi Akhtar appearing for the petitioner has raised several issues with regard to the powers vested in a Magistrate under Chapter 15 of the Code of Criminal Procedure (hereinafter referred to as the Code) and how a Magistrate is to act. and to proceed in case of a complaint, filed before him.

2. The application has been directed against an Order, dated 22.6.1981, passed in an Enquiry case No. 131/1980, by Sri R.P. Pandey, Judicial Magistrate, 1st class at Motihari, district East Champaran. The learned Magistrate, by this order impugned, has dropped the case. The order reads as follows:

Complainant is present. In the present case final form submitted by the police was accepted on 12.2.80 and proceeding of this case was also dropped. Thereafter the case is being proceeded on the protest in the form of complaint.

In view of the observation of the Hon ble High Court, Patna in Cr. Misc. No. 3869/1979 (passed on 9.1. 81), the cases emerged on the basis of protest petition in form of complaint after submission of final form by the police and accepted by the court is bad in law. So the present case will not proceed and hence, it is dropped.

3. The petitioner had filed a petition of complaint on 9.11.79 in the court of the Chief Judicial Magistrate, Motihari. The learned Magistrate, vide order passed on 12.11.1979, transmitted the petition of complaint to the local police for institution of a case and for investigation. The Chief Judicial Magistrate has passed the following orders:

The offence is cognizable. It needs investigation. So, the petition of complaint is transmitted to draw up an F.I.R.

4. It was on the basis of the petition of complaint that the police registered Kalyanpur P.S. case No. 11 (11) 79 for offences under Sections 147, 148 and 379 of the Indian Penal Code against the members of the opposite parties Nos. 1 to 10.

5. On 8.2.1980 the petitioner filed another petition in the court of the Chief Judicial Magistrate, which was a sort of petition of protest against the investigation taken up by the police. It was alleged therein that the police was not taking proper interest in the case inasmuch as, no step was taken for arresting the accused or even seizing the subject-matter of theft, said to be in possession of the accused persons. In substance, the protest, more or less, was in the form of a petition of complaint. The police, however, after completing investigation, submitted final form stating therein that it was a case of insufficient evidence. It was on 12.2.80 that the learned Chief Judicial Magistrate accepted the final form, but at the same time, proceeded to pass the following orders on the petition of protest which was filed earlier in this court.

Since there is a protest in the nature of complaint-petition, let the protest be registered as complaint case.

6. The Chief Judicial Magistrate, thereafter granted several adjournments, on one ground or the other and on 8 5. 80 recorded the following orders transferring the case to Sri R.P. Pandey for enquiry and disposal of the petition of complaint:

Complainant is present. The case is made over under Sec.192 Cr.P.C. to Sri R.P. Pandey Motihari for enquiry and disposal in accordance with law. The Magistrate shall examine the complaint on Section A....

7. On receipt of the record, the aforesaid complaint case was registered in the file of Sri R.P. Pandey as Enquiry case No. 131/80 and the learned Magistrate, in course of the enquiry, examined the complainant and some of his witnesses. But before the enquiry could be completed or any other order could be passed, the learned Magistrate, by order dated 22.6.81, passed the aforesaid order that the case would not proceed and the same was dropped.

8. Submissions advanced on behalf of the complainant petitioner is that the police taken up an investigation of an offence in two contingencies, namely, upon the basis of a First Information Report, lodged by s