The absence of a provision in the Code of Criminal Procedure does not negate the right of the informant to be heard and make submissions to persuade the Magistrate to take cognizance of the offense and issue process.

The petitioner seeks to set aside the docket order dated 21. 2008 made in unnumbered miscellaneous petition in Cr.No.164/2007 on the file of the District Munsif-cum-Judicial Magistrate, Kodumudi, Erode District.

2. By consent, the petition has been taken up for final disposal.

3. The short facts of the case are as follows:-

On the basis of the complaint filed by the petitioner, a case in Crime No.164 of 2007 was registered on the file of the third respondent and after completing the investigating in the case, a charge sheet was filed referring the case as mistake of fact and R.C.S. notice was served. Being aggrieved by that, the petitioner has filed a protest petition before the District Munsif-cum-Judicial Magistrate, Kodumudi, Erode District, and the same has been returned by the learned Magistrate with the following endorsement:-

"Under what provision of law this petition is filed to be furnished. Hence returned. Time one week."

4. Heard the learned counsel on either side. Learned counsel for the petitioner submitted that when a criminal case registered on the basis of the complaint given by the defacto complainant is referred as mistake of fact, a right is given to the defacto complainant to file a protest petition before the Magistrate concerned before whom the referred charge sheet is filed and this right has been reiterated in several decisions of the Apex Court, but the learned Magistrate has returned the petition with the above said endorsement. According to the learned counsel, the protest petition ought not to have been returned, but should have been taken on file and considered on merits.

5. The learned government advocate on the criminal side submitted that the Apex Court has time and again pointed out that once the R.C.S. notice is served on the defacto complainant, a notice should be issued by the Court itself and he should be given an opportunity of hearing before accepting the R.C.S. notice and if a protest petition is filed by the defacto complainant, the same should be considered by the learned Magistrate on merits and proceeded further in accordance with law and hence the procedure adopted by the learned Magistrate is erroneous.

6. I have carefully considered the submissions made on either side. As rightly submitted by the learned counsel on either side that once a referred charge sheet is filed, it is the duty of the Court concerned, before which such a charge sheet is filed, to put the defacto complainant on notice and give an opportunity of hearing to him before accepting the charge sheet filed by the Police. Further, a right is also given to the defacto complainant to file a protest petition. In this regard, it will be useful to refer to two decisions of the Apex Court rendered in Bhagwant Singh v. Commissioner of Police & another reported in U.J. (S.C.) 1985 820 and Sanjay Bansal & another v. Jawaharlal Vats & another reported in. In the second decision cited above, the Apex Court, in para.5, has observed as follows:-

"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 considered. This Court in Bhagwant Singh v. Commissioner of Police and another (AIR 1985 SC 1285), stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows:

"...There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-Section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance or the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are acc