IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.305 of 2019 ------

Ashif Ali, @ Md. Ashif Ansari, aged about 18 years, son of Md. Firoj Ansari, residents of village Naro, Nagri, P.O. & P.S. Nagri, District Ranchi. … Petitioner Versus

1. The State of Jharkhand

2. Syed Sadique Ali, son of Late Safdur Ali, @ Late Safdar Ali, resident of Abdul Karim Lane, Purani Ranchi, P.O. Ranchi, P.S. Kotwali, District Ranchi … Opposite Parties ------

For the Petitioner : Mr. A.K. Sahani, Advocate Mr. Vikesh Kumar, Advocate For the State : Mr. Shailesh Kumar Sinha, Addl.P.P.

For the O.P. No.2 : None ------

P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

2. Notice has validly been served upon the opposite party No.2 but no one turns up on behalf of the opposite party No.2.

3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the order dated 11.12.2018 passed by the learned Judicial Magistrate, Ranchi in Protest-Cum-Complaint Case No.4066 of 2018 arising out of Nagri P.S. Case No.44 of 2018 corresponding to G.R. Case No.1832 of 2018, whereby and whereunder, cognizance has been taken of the offences punishable under Sections

406, 420, 468, 323, 504 and 506 of the Indian Penal Code inter alia against the petitioner.

4. Learned counsel for the petitioner submits that though the learned Judicial Magistrate, Ranchi has treated the protest petition as a complaint but he has not followed the procedure prescribed under Sections 200 and 202 of the Code of Criminal Procedure. Hence, it is submitted that the impugned order is not sustainable in law. Therefore, the same be quashed and set aside.

5. Learned Addl.P.P. appearing for the State on the other hand fairly submits that the learned Judicial Magistrate, Ranchi has treated the protest petition as a complaint but has not followed the procedure prescribed under Sections 200 and 202 of the Code of Criminal Procedure.

6. Having heard the rival submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh reported in (2019) 8 SCC 27, para-42 of which reads as under:-

“42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to f