- (1.) S. R. Bhargava, J. After investigation in a case under Section 436 I. P. C. the investigating officer submitted final report on the ground that a false case was registered with the police on account of enmity. Complainant filed protest petition. After examining the case diary learned Magistrate found that there was sufficient material to summon the revisionist. Hence he passed the impugned order summoning the revisionist.
(2.) IT is obvious that there was no police report under Section 173 (2) before the Magistrate. When the Magistrate proceeded to summon the accused under Section 204 Cr. P. C. despite final report, the only inference possible is that the Magistrate rejected the final report and disagreed with the opinion of the investigating officer. Learned Magistrate could have taken cognizance under Section 190 (1) (c) Cr. P. C. on the statement contained in the case diary. Learned Magistrate did not proceed with the protest petition as a complaint case. In the Criminal Procedure Code of 1898, on procedure was prescribed for commitment of cases of which the Magistrate took cognizance on other information i. e. under Section 190 (1.) (c) Cr. P. C. Hence every protest petition was to be treated as complaint. In the criminal procedure Code of 1973 there are Sections 208. and 209 Cr. P. C. which prescribe procedure for commitment of all cases instituted on the basis other than police report. In view of these provisions it is not mandatory for the Magistrate to treat every protest petition as complaint. I see no illegality in the summoning order. It remains a fact that the Magistrate disagreed with the investigating officer which means that the revisionist has something in his favour. He may be assured of fair trial. Hence I finally dispose of this, revision with the direction that the revisionist shall voluntarily appear before the Magistrate who shall not take the revisionist in judicial custody untill he commits the revisionist to sessions. Instead during enquiry the Magistrate shall require the revisionist only to furnish bond with, or without surety for his attendance on future dates. Learned Magistrate shall take care to commit the revisionist to sessions in the early part of the day, say at 10. 30 or 11 a. m. Revisionist shall be at liberty to apply for bail to the Sessions Judge f on the same day and in case the revisionist moves such bail application on the same day, learned Sessions Judge concerned shall dispose of the bail application of the revisionist on the same day. .;