JUDGMENT R.C. Deepak, J.
1. Heard Sri Onkar Singh, learned counsel for the petitioners, learned A.G.A. for the State and perused the record.
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 witnesses 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 the 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 Section 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 Janardan Mahatre v. State of Maharashtra reported in ACC 2004 (50) page 55 and paragraphs No. 6, 8 & 9 specially. The question rises whether the protest petition can be treated as a compliant. The procedure of complaint and F.I.R. are different. The compliant 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 does not include a police report.
3. The application under Section 156(3) Cr.P.C. can also be treated as compliant, as has been observed by Hon'ble Apex Court in case of Joseph Mathuria and Ors. v. Swami Sacchidanand Harisakshi and Ors. reported in ACC 2001 (Supplementary) page 957, but nowhere the protest petition has been treated as complaint.
4. If the magistrate has recorded the statement as referred to above for which he was not bound, he was at obligation to proceed with the state case not the complaint one.
5. Considering the facts and circumstances of the case, it appears proper in the interest of justice and equity both that the case be reminded back to the learned Sessions Judge/Revisional Court to reconsider the matter in the observations made above. Consequently, the learned revisional court is hereby directed to provide an opportunity of hearing to the informant and the petitioners and reconsider the same within a period of three months from the date of presentation of a certified copy of this order and till then the operation of the orders dated 1.4.2004 and 6.12.2005 passed by the courts below shall remain suspended.
6. With these observations, the writ petition stands disposed of accordingly.