DASHA PATASAHANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this case the petitioners are implicated for commission of offence under Sections 436 and 427/34, I.P.C. in G.R. Case No. 187 of 1990 pending for disposal in the Court of the Sub-Divisional-Judicial Magistrate, Banki. In the said G.R. case final report was filed by the police but notice was given to the complainant who protested against the same. The learned Magistrate not accepting the final report and without following the procedure under Chapter XV of the Code of Criminal Procedure, took cognizance of the offence and issued summons. The petitioners are aggrieved by the order of taking cognizance because according to the petitioners, once protest petition is filed after the final report submitted by the police, then that petition is to be treated as a complaint and in that case, the procedure laid down in Chapter XV of the Code of Criminal Procedure has to be followed. Without following that cognizance cannot be taken. Learned Counsel for the petitioners has relied in Orissa State Power Loom Service Co-operative Society Ltd. v. Hrudanda Swain and Dhaneswar Behera and Others v. State of Orissa & Others. Learned Counsel appearing for the State does not deny this position in law.

(2.) Chapter XV starts with Section 200, Cr. P.C. Section 200 speaks of the examination of the complainant. Section 201 Cr. P.C. speaks of the procedure which the Magistrate has to follow and Section 202, Cr. P.C. is postponement of issue of process to the accused and investigate the matter either himself or through agency. Section 203 is about dismissal of complaint if the Magistrate is of the opinion that there is no sufficient ground for proceeding.

(3.) As laid down in (1984) 58 C.L.T. 566 (supra) it is well settled that a protest petition when made is to be treated as a complaint petition and the magistrate after complying with the provisions of Chapter XV of the Code of Criminal Procedure may either issue process to the accused person or dismiss the complaint, i.e. such action is to be taken by the Magistrate only. The statement of the complainant and his witnesses are required under law and not otherwise.