Phulgend vs State and Another

M.M. Gupta, J.—In this case a report u/s 395 read with Section 397 IPC was filed against the applicant. The reporter was opposite party No. 2. The police investigated the case and submitted the final report.

The complainant, however, moved a protest application that the police was not right in submitting the final report.

The learned Magistrate considered the protest application and also the final report submitted by the police and, ultimately, passed an order not accepting the final report and ordered the submission of the charge-sheet. The applicant who was accused before the Magistrate now claims that the protest application should have been treated as a complaint and the statements of the witnesses u/s 200 and Section 202 Code of Criminal Procedure would have been recorded and without recording their statements the proceedings are null and void and should be quashed.

I have heard the learned Counsel for the applicant. The learned Counsel for the applicant has cited Abhinandan Jha and Others Vs. Dinesh Mishra, . In that case the Supreme Court observed that it was open to the learned Magistrate to treat the protest petition as a complaint and take further proceedings according to law. This case, however, does not say that the Magistrate was bound to treat the protest application as a complaint. So far as the Magistrate is concerned he was himself not bound to accept the final report and even without the protest application he could refuse to accept the final report. It, therefore, cannot be said that the learned Magistrate was bound to treat the protest application as a complaint, as it is likely that in cases where protest applications are made the police may have sufficient reasons for not proceeding with the case yet the complainant may be able to show that the police had submitted the final report on account of some ulterior motive or objectionable methods adopted by it. It is, therefore, not necessary that the protest application may contain all the facts which constitute a complaint under the law. I am, therefore, not prepared to exercise my powers u/s 482 Code of Criminal Procedure.

The application is therefore dismissed.