SALIM Vs. STATE OF U P

JUDGEMENT

(1.) learned counsel for the petitioners, learned A.G.A. for the State and perused the records.

(2.) The facts of the case in brief are that a case as case crime No.368A of 2003 under Sections 323.307,452,506 IPC was registered. The investigation was carried, but the final report was submitted. The informant filed protest petition. The learned magistrate recorded the statement of the informant and some of the witness and treated the protest petition as complaint. The principal submission raised before this Court by the learned counsel for the petitioner is that when a final report is submitted, the following courses are open to the Magistrate: (i) if satisfied, accept the final report and drop proceeding; (ii) to disagree with the report, summon the accused; and (iii) to direct for further investigation. But the learned Magistrate recorded the statements under Sections 200 and 202 Cr. P. C. and certain others and treated the protest as complaint. His further contention is that the Magistrate is not bound to record such statement and if he is not satisfied, he is to direct for further investigation. He has relied upon the case of Gangadhar Janardhan Mahatre v. State of Maharashtra, reported in ACC 2004 (50) page 650 : (AIR 2004 SC 4753) and paragraph Nos.6,8 & 9 specially. The question arises whether the protest petition can be treated as a complaint. The procedure of complaint and F.I.R. are different. The complaint is defined in Section 2(d) of the Code of Criminal Procedure, which runs as under: Section 2(d) : "complaint" means any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but noes not include a police report.

(3.) The application under Section 156 (3) Cr. P. C. am also be treated as complaint, as has been observed by Hon'ble Apex Court in case of Joseph Mathuria and others v. Swami Sacchidanand Harisakhsi and others, reported in ACC 2001 (Supplementary) page 957, but nowhere the protest petition has been treated as complaint.