KISHORE KUMAR GYANCHANDANI Vs. G D MEHROTRA

JUDGEMENT

(1.) Leave granted.

(2.) The complainant is the appellant in this Court assailing the order of the High Court in revision setting aside the cognizance taken by the Magistrate on the basis of a complaint. It transpires that in respect of the incident in question an F.I.R. was lodged on 15th of September, 1995 making out an offence under Sections 279 and 338 of the Indian Penal Code (IPC). The police on investigation into the offence, filed the final form which was accepted by order dated 27-1-1996. On 19-4-1996 a Protest Petition is alleged to have been filed and on that petition the Magistrate by order dated 7-1-1998 directed that the same be treated as a complaint. The Magistrate then held an inquiry under Section 202 of the Code of Criminal Procedure (Cr.P.C.) and ultimately, on the basis of the materials produced in the inquiry, taking the same with the allegations made in the Protest Petition which has already been treated as a complaint, took cognizance under Sections 279 and 338, IPC. The accused then filed an application for dismissal of the complaint before the Magistrate on 12-3-1994. The Magistrate, however, dismissed the same on 24-8-1997. The accused then moved the High Court invoking its revisional jurisdiction and the High Court by the impugned order, having set aside the order taking cognizance and issuance of process in the complaint proceeding, the present appeal has been preferred.

(3.) There is some controversy between the parties that before accepting the final form by the Magistrate on 27-1-1996 notice had been served on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the Court. Be that as it may, we are not entering into that controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final form, the same having been filed by the police.