The Magistrate has the power to accept or reject a final report after applying his judicial mind to the materials collected during the investigation. A protest petition against a final report is not equivalent to a complaint and does not automatically trigger the procedure for a complaint case.

he short question involved in the present revision appli cation under Sections 397401, Cr. P. C. is as to whether the Magistrate is duty bound to take cognizance of a case, the moment there is a protest petition by informant.

2. The facts in the instant case lie in a very narrow compass. An F. I. R. was lodged by Dr. Tikaram Jaglan against 1. Babu s/o Katara, 2. Onkar 3. Babu s/o Raje, 4. Raj Kumar, 5. Kartar, 6. Nirankar and 7. Shiv Raj, on 27-11-1984, regarding an alleged incident which was said to have happened in the night of 22-11- 1984, through an application addressed to the Circle Officer after about 5 days of the incident. This report to the Circle Officer was ultimately sent to the police station concerned for the investigation, A final report followed. It appears that some objections were taken to the said final report. Another investigation was directed, this time by another investigating officer which also ended in a final report. Objections were repeated resulting in yet another investi gation by yet another investigating officer. This time too a final report came. At this stage a protest petition was filed by Dr. Tikaram Jaglan. The Magistrate heard the informant and his counsel and by a detailed order dated 10-1-1986 rejected the protest petition and proceeded to accept the final report.

3. Though not strictly necessary, it may be desirable to mention here that the Magistrate primarily relied upon the fact that on lace occasions final report was forwarded and that the statements of two alleged

eye-witnesses, namely, Prithivi-pal and Mohan Das who were examined by the prosecution under Section 164, Cr. P. C. during investigation, did not name any accused, whatsoever. The belated report to the Circle Officer and the absence of any F. I. R. at the police station either by the informant or by any witness, was also taken note of. The F. I. R. was registered under Sections 436379427504506, IPC. Prompt F. I. R. would have revealed the truthfulness or otherwise of the charges by prompt investigation. The view of the Magistrate further was that this opportunity also was permanently lost. Thus came the order of the Magistrate whereby he accepted the final report.

4. Dr. Tikaram Jaglan took the matter to the Sessions Court in revision, which was numbered as Criminal Revision No. 911986 and has been ultimately allowed on 5-5-1988 by the Second Additional Sessions Judge, Ghaziabad. Four of the named accused, Babu so Katara, Babu so Raje, Onkar and Raj Kumar have challenged the said order of the Sessions Judge, in the present revision.

5. A perusal of the order of the Sessions Judge, indicates that he has interfered with the order of the Magistrate basically on three findings:

(a) The learned Magistrate was not justified in accepting the final report on the basis of the reasons given in the impugned order.

(b) The protest petition is to be treated as a complaint and the entire procedure of complaint case had to be observed.

(c) There was sufficient evidence before the learned Magistrate to take cognizance in the case upon the protest application of the informant and the learned Magistrate did not exercise jurisdiction vested in him properly.

6. I have heard at length Sri R. S. Yadav, learned counsel for the appli cants and Sri N. K. Sharma on behalf of the informant. Sri H. P. Tripathi, learned AGA has been heard on behalf of State of U. P.

7. At the outset it must be clarified that the procedure for complaint case is never to be misplaced with the right of the Magistrate to reject a final report, which may be done with or without a protest petition. Time out of number it has been emphasized that a protest petition can and should not be compared to a complaint unless such statement is made by the complainant informant that his petition be treated as a

complaint within the meaning of Section 190, Cr. P. C. or for some reason the Magistrate himself treats it as a complaint and follows the procedure contained in C