ZAHIRUDDIN Vs. STATE OF U P

JUDGEMENT

(1.) In a case under Sections 395, 397 and 12-B I. P. C. P. S. Kachawa, District Mirzapur after investigation, investigating officer submitted final report. Complainant felt aggrieved with the final report and filed protest petition. It appears that he also filed a list of witnesses. Even if he did not file list of witnesses, he examined murder of witnesses in support of protest petition. Learned Magistrate accepted the final report. He, however, did not say any, thing whether he wag proceeding with the protest petition as a complaint case or not. When a protest petition is filed Magistrate can proceed with it as a complaint case or just an objection against the final report. When the Magistrate proceeds to record statements of the witnesses produced by the complainant, it becomes evident that he preferred to treat the protest petition as complaint and proceeded with the complaint case. Once he has done so, he has no juris diction to accept the final report and shift the case. Rather he is bound in a case exclu sively triable by the court of Sessions, to comply with the provisions of Sections 200 and 202 Cr. P. C. and then pass proper order under Section 203 or 204 Cr. P. C. Thus it is evident that the order of the Magistrate accepting the final report and shelving the case is evidently without jurisdiction. Magi strate has yet to proceed with the enquiry according to law and pass suitable orders. Since the case has to be remanded for further enquiry and proper order, no notice is required to the opposite parties No. 2 to 37. It may be noted that unless the persons named in complaint case are Summoned, they have no locus standi in the case and have no right to be heard. Hence at this very stage I admit and allow the revision and remanded the cass to the Magistrate concerned for proper enquiry and orders on the protest petition as a complaint case. Chief Judicial Magistrate may assign the case after remand to some other Magis trate than the Magistrate who passed the impugned order dated 23. 6. 1990. A copy of this order be issued to the counsel of the revisionist on payment of usual charges within 48 hours. Allowed .