Whether a Magistrate is competent to take cognizance of a protest complaint filed by a complainant on receipt of the notice on a refer report submitted by the police officer after investigation under Section 173(2) of Code of Criminal Procedure, ignoring the refer report and without considering the question whether the refer report is to be accepted or not? This is the question to be settled in the revision. Incidentally, what is the proper procedure to be adopted by a Magistrate on receipt of a refer report is also to be settled.

2. Facts on a narrow compass is as follows:

First respondent filed a complaint before Judicial First class Magistrate –II, Haripad against three accused alleging that they committed offences under Sections 409, 420, 468, 471, 474 and 477A read with Section 34 of Indian Penal Code. The Magistrate on receipt of the complaint sent it for investigation under Section 156(3) of Code of Criminal Procedure (hereinafter referred to as the Code). Crime 326/2006 was registered. Additional sub Inspector of Police, Haripad investigated the case. He submitted a refer report on 20/9/2006 to the effect that the case is false. Magistrate issued notice to first respondent, the complainant. As notice was not served, it was adjourned for service of notice and finally it stood posted to 21/4/2007. On 21/4/2007 first respondent filed C.M.P.899/2007 a protest complaint. Learned Magistrate thereafter passed orders only in C.M.P.899/2007 and did not pass any further order on the refer report, though notice was originally ordered thereon. It is evidently in view of filing of the protest complaint. Learned Magistrate recorded the sworn statement of first respondent and two witnesses in C.M.P.899/2007 and posted it for hearing to 20/8/2007. On 20/8/2007 the following order was passed.

“Complainant absent. Heard. Case taken to file as C.C.No.66/2007 under Sections 409,420, 468,477A & 34 IPC. Issue summons to all accused”.

The order is challenged in this revision petition.

1. 3. Learned counsel appearing for revision petitioner and learned counsel appearing for first respondent and learned public prosecutor were heard.

4. Learned counsel appearing for revision petitioner argued that the order passed on 20/8/2007 taking cognizance of the offences is illegal as there was no application of mind by the Magistrate. Learned counsel argued that when a refer report is submitted by the police after investigation though the Magistrate has several options including taking cognizance of some of the offences or against some of the accused or directing further investigation under Section 156(3) or conducting inquiry under Section 202 on the original complaint, the Magistrate cannot altogether ignore the final report and without deciding whether the final report is to be accepted or not, a protest complaint cannot be entertained. It was argued that when the final report was neither accepted nor rejected a protest complaint will not lie. Argument is that as settled by the Apex Court, a second complaint would lie only if there was manifest error or manifest miscarriage of justice or new facts are alleged which complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings and even if the original complaint was forwarded under Section 156(3) earlier, the original complaint is not effaced from record and so a second complaint will not lie and Magistrate could not have passed the impugned order and therefore the order is illegal. Learned counsel argued that when a complainant is entitled to a notice before acceptance of the refer report submitted by the police after investigation, he has a right to be heard and the Magistrate is bound to consider the objections, if any, raised by the complainant and if that be so, it is obligatory on the part of the complainant to point out before the Magistrate why the refer report cannot be accepted and if on a materials the Magistrate finds that