J.C.Gupta - (1.) HEARD the applicants counsel and the learned A.G.A.
(2.) BY means of this application, the applicants have prayed for the quashing of the order of the Magistrate dated 28.1.92 by which he has rejected the Final Report submitted by the police and has issued process against the applicants. Learned counsel for the applicants firstly argued before me that the impugned order of summoning the applicants as accused is bad in law inasmuch as it cannot be inferred from the said order whether the Magistrate has taken cognizance under the provisions of Section 190 (1) (a) or Section 190 (1) (b) of the Code of Criminal Procedure. According to him, after the filing of Final Report by the police, if the complainant moves a Protest Petition and also files some affidavits or other material, the only course open for the Magistrate is to take cognizance under the provisions of Section 190 (1) (b) after following the procedure provided in respect of complaint cases and since such a procedure has not been followed in the present case, the impugned order is liable to be quashed. He placed reliance upon the decision in Bhagwan Das v. State, 1989 ACrR 1. In the aforesaid decision, Hon'ble Palok Basu, J. went into the question, "will it be legal, and if yes, then what will be the procedure to be followed in cases where after investigating the First Information Report, Investigating Officer files a Final Report and the informant challenges the said Final Report by filing protest Petition and affidavits before the Magistrate, who then takes the cognizance and summons the accused?" It has been held in the said decision that after the judgment of the Hon'ble Supreme Court in Bhagwant Singh v. State, 1986 AWC 26, it is incumbent upon the Magistrate to issue notice to the informant before accepting the Final Report forwarded by the Investigating Officer. The learned Single Judge in the case of Bhagwan Das (supra) has further held that In pursuance of the notice issued to the complainant, the Magistrate is not to hear the informant orally only and if the Magistrate permits the informant to produce application, affidavit and other material, he is not bound to follow the procedure provided for the complaint cases. The learned Judge observed : 'The Honble Supreme Court never appears to have desired that in such a case, an informant should be asked to shoulder the burden of the complainant even though the Final Report deserves rejection." It has also been held in the aforesaid decision of Bhagwan Das that when the Magistrate takes cognizance on a complaint and he wishes to proceed with It, he has to record statement of the complainant on oath and so long as this is not done, the Magistrate will be deemed to be considering only the police report.
(3.) IN the case in hand, the complainant of course presented a protest petition and filed some affidavits before the Magistrate but it further appears that the Magistrate did not think it necessary to record the statement of the first informant under Section 200 Cr.P.C. By filing Protest Petition, the complainant simply invited the attention of the Magistrate that he was not agreeing with the Final Report submitted by the police and he was submitting his objections in the form of the protest petition. Un-disputedly, the Magistrate has not recorded the statement of the complainant under Section 200, Cr. P.C. and has not followed the procedure provided for complaint cases, it would thus be deemed that the Magistrate was considering only the police report while taking cognizance of the case IN exercise of powers under Section 190 (1) (b) of the Code. It is now well-settled law that when a Final Report is submitted by the police after investigation, three courses are open to the Magistrate : (1) He may accept the Final Report and drop the proceedings, after hearing the complainant/First informant. (2) He may disagree with the conclusion arrived at by the police officer and straightaway take cognizance in exercise of powers under Section 190(l)(b) of Cr. P.C. (3) He may order further Investigation. ;