V.P.Mathur - (1.) THIS revision is being disposed of finally.
(2.) THE brief facts of the matter are that a first information report was lodged purporting to be under sections 395, 397 and 376 of the IPC against the revisionist Satyapal, Grish and Shyam Pal. On the basis of the same, case crime no. 192 of 1987 was registered at Police-station-Kotwali, Etah. An investigation was made and the Investigating Officer ultimately submitted what is known in common parlance as 'the final report'. Simultaneously with it a protest petition of which a copy has been placed on the record, in compliance with the order of this Court was also moved by the complainant. THE learned Special Judge (DAA) Etah, who was seized of the matter through Special Sessions Trial No. 45 of 1988 passed the following order on 19-2-1988- 19-2-88 : " Perused all the record on protest file. THEre are statements of witnesses, Medical report and Injury repeat and Case Diary. Considering all tee material on record, it cannot be said that there is nothing to proceed against accused persons. Against ail the accused named in FUR i.e. Satya Pal. Grish, Shyam Pal, the cognizance is taken under sections 395/391/376 IPC. Accused be summoned for 19-3-88 ". Sd. Ram Das Spl. Judge (D.A.A.) Etah. It is now contended that since the order has been passed on the protest petition it should have been treated as a complaint and the procedure of a complaint case should have been gone through and before actual summoning of the applicants, statements under sections 200 and 202 CrPC ought to have been recorded. As such it is contended that the order of summoning is invalid and should be quashed. When an investigation is made on the basis of a first information report, the police has two options (i) it may either submit a report under section 169 of the Code of Criminal Procedure, if it finds that there is the lack of sufficient evidence and no reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate and (ii) it may also in the alternative submit a report under section 173 of the Code of Criminal Procedure in the prescribed form so that the Magistrate may take cognizance of the case under section 190 of the Code of Criminal Procedure. The Magistrate can take cognizance of an offence in three ways : (a) Upon receiving a complaint of facts, which constitute such offence ; (b) upon a police report of such Jacts ; (c) upon an information received from any person other than a police officer ; or upon his own knowledge, that such an offence has been committed. It has been held time and again and now this has ripened into a well established law that a Magistrate is not bound to accept the opinion of the police submitted to him under section 169 of the Code of Criminal Procedure. He can disagree and differ with it and if he does so then even on the basis of the police papers, if any, submitted al?ng with the police report, he can take cognizance of the case and that cognizance will be deemed to be under section 190 (1) (b) of tbe CrPC on police report itself and under those circumstances summoning of the accused out-right without resort to section 200 onwards, will be in order.
(3.) THE cases of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and K. S. Bains v. State (Union Territory of Chandigarh), 1980 ACrR 423 = AIR 1980 SC 1883, lay down this law. The position of a protest p;tition has also now been made very clear by various judgments of this Court. Tie Magistrate is free to reject the police report submitted under section 169 of t!he CrPC and act on the protest petition. But this be can do only if the protest petition comprises of all the ingredients of a complaint which has been defined under section 2 (d) of the Code of Criminal Procedure. In that case the procedure to be followed will be that of a complaint case and statement under section 200 CrPC will have to be taken and then the learned Magistrate may decide how to proceed thereafter. But without accepting the report under section 169 of the CrPC the Magistrate may still proceed under section 190 (1) (b) of the CrPC upon that report itself, rejecting the opinion of the police and the result will be that he will be free to summon the accused out-right sand straightway. In the present case, the order dated 19-2-1988 shows that the learned Sessions Judge (DAA) Etah (who has the powers of the Magistrate under the special law) perused the entire record of protest file. He went through the statements of the witnesses, the medical report and the injury report as well as the Case Diary. The statements of the witnesses, the medical report and the injury report were not filed by the complainant with his protest petition. They had been submitted to him by the police along with the Case Diary and naturally therefore what he considered was the entire material on the record. The protest petition in this case could hardly be treated to be a complaint, because it neither disclosed the offence committed nor the persons who had committed the same and could not be covered by the definition of a complaint, as given in section 2 (d) of the Code of Criminal Procedure. This being so, the cognizance has been taken in this case on the police report itself under section 190 (1) (b) of the Code of Criminal Procedure and there was no need for the learned Magistrate to proceed under section 200 of the CrPC and the sections that follow. He could straightway summon the accused which he has done in this case. There has been no illegality and the revision is misconceived and stands dismissed accordingly at admission stage. Revision dismissed.;