IMPORTANT POINT
Right of Complainant to file petition under Section 200 Cr.P.C. is not taken away even if Magistrate concerned does not direct that such a Protest Petition be treated as a complaint.

JUDGMENT :

VIKRAM NATH, J.

1. Leave granted.

2. This appeal assails the correctness of the order dated 24.08.2021 passed by the Allahabad High Court dismissing the application under Section 482 of the Code of Criminal Procedure, 1973¹ [Cr.P.C.] filed by the appellant wherein a prayer was made to quash the Summoning Order dated 08.03.2021 by the Chief Judicial Magistrate² [CJM] Aligarh in Case No. 129/2020 under Sections 147, 342, 323, 307, 506 of the Indian Penal Code, 1860³ [IPC] Police Station, Civil Lines, District Aligarh. There is an order dated 01.11.2021 passed by the High Court wherein the Case Number mentioned in the order dated 24.08.2021 was corrected as Case No. 5727/2021.

3. Respondent no. 2 lodged a First Information Report⁴ [FIR] bearing the aforesaid details whereupon the same was investigated and after investigation the police report under Section 173(2) Cr.P.C. was submitted according to which the Investigating Officer found that no evidence could be collected which could substantiate the allegations made in the FIR. The said report was submitted to the Court concerned whereupon notices were issued to the informant. The informant filed a Protest Petition along with affidavits to show that the investigation carried out by the Investigating Officer was not a fair investigation. He had completed the case diary sitting at the Police Station without actually recording the statements of the witnesses.

4. The CJM, by order dated 08.03.2021 rejected the police report under Section 173(2) Cr.P.C. and further proceeded to take cognizance for offences under Sections 147, 342, 323, 307, 506 of the IPC and under Section 190 (1) (b) of the Cr.P.C. and also directed that the matter would continue as a State case. Accordingly, it summoned the accused, fixed 30th April, 2021. This order of cognizance and summoning the present appellant was assailed before the High Court by way of a petition under Section 482 Cr.P.C. registered as Application u/s. 482 No. 15273 of 2021. The said application has sine been dismissed by the High Court giving rise to the present appeal.

5. Shri Vinod Prasad, learned senior counsel appearing for the appellant submitted that the CJM as also the High Court fell in error in taking cognizance under Section 190(1)(b) Cr.P.C. inasmuch as the CJM had relied upon not only the Protest Petition which was supported by affidavit of the complainant but also on the affidavits of witnesses which were filed along with the Protest Petition to support the contents of the complaint. The submission was that once the CJM was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the CJM was to treat it as a complaint under Section 200 Cr.P.C. and proceed accordingly. The said case could not have been continued as a State case and should have been treated as a private complaint. It was also submitted that it was open for the CJM to have rejected the police report submitted under Section 173(2) Cr.P.C. for closure and relying upon the material in the case diary, (in effect, the material collected during investigation) could have taken cognizance but once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint and after following the due procedure in Chapter XV of the Cr.P.C. proceeded to take cognizance under Section 190(1)(a) Cr.P.C.

6. On the other hand, the submission advanced by the learned counsel for the State as also the Complainant-respondent no. 2 was that the CJM did not take into consideration any additional evidence filed in the form of affidavits along with the Protest Petition and had only relied upon the material collected during the investigation as contained in the case diary and based upon the same the satisfaction recorded by the CJM to reject the police report and take cognizance was well within his domain and such cogni