NARAYAN SHUKLA,J. - (1.) HEARD Mr. Mukul Rakesh, learned Counsel for the petitioners and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
(2.) THE petitioners have challenged the summoning order dated 5th of April, 2011, passed by the Judicial Magistrate, Room No. 15, Pratapgarh in F.R.No.111 of 2009, on the ground that once the learned Magistrate took cognizance of offence on the basis of protest application, he is bound to proceed with the case as complaint case, whereas he has proceeded with the case as State case. Upon perusal of the order im ­pugned I find that the learned Magistrate has considered the record, protest applica ­tion, affidavit as well as case diary and some other documents also, which may be material of the police report and thereafter having found investigation as not proper, he rejected the final report. It is settled law that once after submission of the final re ­port, the Magistrate takes cognizance of offence on the basis of protest application, keeping in view the material therein, he has to proceed with the case as a complaint case.
(3.) SINCE the learned Magistrate has considered the case diary also and ob ­served that the Investigating Officer has not recorded the statement of witnesses properly. I am of the view that he has con ­sidered the case diary also, whereas the learned Magistrate has to clear himself as to whether he has to proceed on the basis of material available in the case diary or on the basis of material of the protest applica ­tion, because these two different mode of considerations provide two different pro ­cedure of trial, therefore, I hereby quash the order impugned dated 5th of April, 2011 with the direction to the learned Mag ­istrate, first to clear himself as to whether he has to proceed on the basis of protest application or on the basis of case diary, and then proceed accordingly. The Magis ­trate is at liberty to proceed to his own wisdom, keeping in view the observations made here-in-above.;