- (1.) HEARD learned counsel for the applicant, learned A.G. A for the State and perused the material available on record.
(2.) THIS application under Section 482 Code of Criminal Procedure (hereinafter referred to as the Code) has been filed by the complainant or quashing the order dated 29.01.2009 passed by the Special Chief Judicial Magistrate (Customs) Lucknow (hereinafter referred to as the Magistrate) on the Final Report No. 9 of 2007 (Crime No. 244 of 2007) State v Ashok Snvastava and others, under Sections 419, 420, 467,468,469, 506 I.P.C. and Section 3 (1) (x) of SC/ST Act, Police Station Mohanlalganj, District Lucknow, whereby learned Magistrate allowing the protest petition filed by the complainant has treated the Final Report submitted by the Investigating Officer as complaint. In this application the only question involved for consideration is that whether the learned Magistrate could treat the final report submitted by the Investigating Officer in crime number as mentioned above, as complaint? This question can be decided at the admission stage without calling the opposite party to file counter affidavit. Therefore, with the consent of learned counsel for the applicant and learned A.G.A., the application is being finally disposed of at the admission stage. The relevant facts giving rise to the present application in brief are as under: - On the written report of complainant, Ramesh Chandra (present applicant), son of Sri Ram Kishan, resident of 84/1, Nazarbagh, Barkat Road, Lucknow, police of police station Mohanlalganj, registered a ease under Sections 419, 420, 467, 468, 469, 506 I.P.C. against the accused for investigation. The Investigating Officer after investigation of the case submitted final report in the matter. The complainant thereafter filed protest petition before the learned Magistrate to cancel the final report and to direct the Investigating Officer for further investigation of the case. The learned Magistrate by the impugned order allowed the protest petition of the complainant and treated the final report as complaint.
(3.) THE complainant feeling aggrieved by the impugned order passed by the learned Magistrate has filed the present application under Section 482 of the Code. The submission of learned counsel for the applicant is that when in a cognizable offence the Investigating Officer files final report betorc the Magistrate, the Magistrate has got four options. The first option is that he can accept the final report, if there is no evidence against the accused to take cognizance of the offence as complained by the complainant. The second option is that the learned Magistrate can take cognizance of the offences under Section 190 (1) (b) of the Code on the police report, if the evidence collected by the Investigating Officer, is sufficient in support of offences committed by the accused. The third option is that if the Magistrate finds that the Investigating Officer has not properly investigated the case, he can direct the Investigating Officer for further investigation of the case. The fourth option is that if the Magistrate finds that there is no evidence on the case diary in support of the offences alleged to have been committed by the accused, he can treat the protest petition of the complainant as complaint and may proceed in accordance with the provision laid down under Sections 200 and 202 of the Code. In this case, the learned Magistrate after going through the police report/final report submitted by the Investigating Officer has specifically found that on the basis of statement of witnesses recorded by the Investigating Officer under Section 161 of the Code prima facie, offences as alleged by the complainant to have been committed by the accused are being made out. In such circumstance, the learned Magistrate had got the only option to take cognizance of the offence upon police report under Section 190 (1) (b) of the Code. The learned Magistrate was not required to treat final report as complaint. Nowhere under any of the provision of Code, the Magistrate is empowered to treat the police report/final report as complaint. In case, if the Magistrate had found that there was no evidence against the accused on the case diary in support of the offence alleged to have been committed by him, he could treat the protest petition as complaint. The impugned order passed by the learned Magistrate treating the Final Report as complaint is apparently illegal and is liable to be quashed.;