J.C.GUPTA, J. - (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 28-1-1992 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 (l)(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(l)(b) after following the proce­dure provided in respect of complainant 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, 1993 ACr R1.
(3.) 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 filed 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 A.W.C. 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 complainant case. The learned Judge observed: "The Hon'ble 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." ;