.No doubt, depending upon the material which is made available to the Magistrate by the complainant in the protest petition, It may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report.

Para 41.No doubt, depending upon the material which is made available to the Magistrate by the complainant in the protest petition, It may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report.

That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under section 190(1)(b) of the Code of Criminal Procedure for which there is no necessity to examine the witnesses under section 200 of the Code of Criminal Procedure but as a Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of a complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under section 200 of the Code of Criminal Procedure or section 200 read with section 202 of the Code of Criminal Procedure. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.

Para 42.It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of the notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State 10, a learned Judge of the High Court of Orissa, took the view that a protest petition is in nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code.

Para 45.If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under section 200 read with the section 202 of the Code of Criminal Procedure. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complain, we would think that essentially, the protest petition in this case, is summing up of the objections of the second respondent against the final report.

 

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