SURENDRA PANDIT Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners challenge the order dated 14.08.2007 passed by the Court of the Chief Judicial Magistrate, Banka, through which he has taken cognizance of an offence punishable under Sections 302/34 of the Indian Penal Code, against the petitioners. Brief facts of the case are that the 2nd respondent filed a complaint before the Banka Police Station alleging that the petitioners herein caused the death of his father, by name Jagdish Yadav. His statement was recorded and Banka P.S. Case No.54 of 2001 was registered mentioning Sections 302/34 of the Indian Penal Code. The petitioners herein were shown as accused.

(2.) After conducting investigation, the police submitted a final report under Section 173 Cr. P.C. stating that the allegations against the petitioners are found to be not true. Feeling aggrieved by that, the 2nd respondent filed a protest petition, before the Chief Judicial Magistrate, Banka. All the same, the final report was accepted. However, the trial Court treated the protest petition of the 2nd respondent as a complaint under Section 200 Cr. P.C. and recorded statement of the 2nd respondent and examined three more witnesses. Based upon that, he passed order dated 14.08.2007 taking cognizance of the offence.

(3.) Learned counsel for the petitioners submits that once the complaint of the 2nd respondent filed before the police resulted in registration of FIR, and after investigation, a final report was filed stating that the allegations made against the petitioners are incorrect, there was absolutely no basis for the trial Court to treat the protest petition as a private complaint. He further submits that whatever be the possibility of a protest petition being treated as a private complaint, before any final order is passed on the final report, once the report filed under Section 173 of the Cr. P.C. was accepted, the question of protest petition being treated as a complaint under Section 200 Cr. P.C. does not arise.