R.P.Shukla, J. - (1.) THIS revision is directed against the order, dated 21-4-86, passed by the Special Judge, Etawah, in Special Case No. 34 of 1986, summoning the applicants to stand their trial under sections 395, 397 and 436, IPC.
(2.) BRIEFLY stated the facts of the case are that, on the report of opposite-party No. 2, Ganga Prasad, the case was registered and investigated. After investigation, the police came to the conclusion that no case was made out against the applicant and. therefore. filed final report. The final report was not accepted by the Special Judge, and, in the meantime, it is said that the first informant appeared before the court with a protest petition and affidavits of some of the witnesses However, the Special Judge took cognizance of the offence over the final report. The contention of the learned counsel for the applicants is that, once a protest petition was filed and some affidavits were filed, the learned Special Judge ought to have adopted the procedure prescribed for proceedings on a complaint. In Bhagwati Singh v. Commissioner of Police, Delhi, 1986 ACrR 26, it has been held by the Supreme Court, that the Magistrate must give notice to the first informant before he proceeds to accept the final report. Here in this case, the first informant was heard through his protest petition and the affidavits, but the cognizance has been taken on the final report. Though the learned Special Judge has referred, the names of the witnesses, but only to the extent that they are witnesses who have made the statements before the Investigating Officer. Mere filing of protest petition and the affidavits is ? not enough to challenge a procedure to be adopted in a complaint case. Earlier, this court has taken the view that the Magistrate taking cognizance of the offence on the perusal of the police report under section 169, CrPC protest petition of the informant and his affidavit and issuing process straightway is not, in any way, illegal as the same can be done under Section 190 (1) (b), CrPC. This view has been taken in 1986 CrLJ 866. The same view has been repeated by this court in Criminal Revision No. 243 of 1983, Ashok Kumar, Applicant v. Shyam Lal. The procedure to be adopted as if on a complaint is only in those cases, wherein the cognizance has been taken upon the protest petition itself. Here the case is otherwise. In view of the pronouncement of the Supreme Court in H. S. Bains v. State (Union Territory of Chandigarh), 1980 AWC 619, the Special Judge was competent to take cognizance on the final report. The revision is, therefore, dismissed.,
(3.) A certified copy of this order may be issued to counsel for the applicants within twenty four hours on payment of usual charges. Revision dismissed.;