Decided on April 03,2012

Gauri Shankar Mohta And Another Appellant
Vishal Agarwal Respondents


Barin Ghosh, J. - (1.) THE interim order was passed proceeding on the basis, as if, the complaint was lodged two years after the incident when, in fact, because of action complained of in the complaint, there was no other option for the informant, but to lodge that complaint, thus, belatedly. The facts, to which, there appears to be no dispute are that the First Information Report pertaining to the incident dated 8th May, 2009 was not accepted by the police for reasons only known to the police. That compelled the informant to approach the Magistrate under Section 156(3) of the Code of Criminal Procedure, who, by an order dated 15th June, 2009, directed the police to accept the First Information Report. Thereafter, on 29th August, 2009, police submitted a report in final form. After notice to the informant, on 21st October, 2010 the police report was accepted. It is the contention of the applicants that when notice was given to the informant, it was obligatory on the part of the informant to file a protest petition. There is no provision in law for filing a protest petition. It is settled law that a Magistrate is not bound by the police report. It is also settled law that on the basis of materials brought on record along with the police report, instead of accepting the opinion of the police, it is well within the competence of the Magistrate to frame charge on the basis of such materials. The Magistrate, while accepting the police report, did not even bother to record that the materials brought along with the police report did not disclose commission of an offence. The order of the Magistrate will demonstrate in clearest of clear terms that the Magistrate, while rejecting the prayer made by the informant for an adjournment, accepted the police report mechanically without application of mind. In the circumstances, informant was compelled to file a complaint. That being the situation, interim order dated 22.9.2011 is vacated and the application made under Section 482 of the Code of Criminal Procedure is dismissed.;

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