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Issues Involved:
1. Competence of a Magistrate to take cognizance of a protest complaint ignoring the refer report. 2. Proper procedure for a Magistrate on receipt of a refer report. Detailed Analysis: 1. Competence of a Magistrate to Take Cognizance of a Protest Complaint Ignoring the Refer Report: The central question is whether a Magistrate can take cognizance of a protest complaint ignoring the refer report submitted by the police after investigation under Section 173(2) of the Code of Criminal Procedure (CrPC). Arguments: - For the Petitioner: The Magistrate's order taking cognizance of the protest complaint is illegal due to lack of application of mind. The Magistrate must decide whether to accept or reject the refer report before entertaining a protest complaint. A second complaint lies only under specific conditions such as manifest error, miscarriage of justice, or new facts unknown earlier. - For the Respondent: The Magistrate conducted an inquiry under Section 202 CrPC, recorded sworn statements, and was convinced to proceed under Section 204 CrPC. The absence of a specific order rejecting the final report is not fatal as the Magistrate implicitly did not accept the report. Legal Provisions and Precedents: - Section 173(2) CrPC: Magistrate is not bound by the police's opinion and has several options, including taking cognizance, directing further investigation, or dropping proceedings. - Tula Ram v. Kishore Singh (AIR 1977 SC 2401): Magistrate can order investigation under Section 156(3) at the pre-cognizance stage and has various alternatives after taking cognizance. - India Carat Pvt. Ltd. v. State of Karnataka (AIR 1989 SC 885): Magistrate can take cognizance under Section 190(1)(b) even if the police report suggests no case. - Pramatha Nath Talukdar v. Saroj Rangan Sarkar (AIR 1962 SC 876): Second complaint can be entertained only in exceptional circumstances. - Poonam Chand Jain v. Fazru (2004 (13) SCC 269): Second complaint on the same facts is permissible only under exceptional conditions. Conclusion: The Magistrate must consider the final report before taking cognizance of a protest complaint. Ignoring the final report and taking cognizance without deciding on the refer report is not lawful. 2. Proper Procedure for a Magistrate on Receipt of a Refer Report: The procedure a Magistrate must follow upon receiving a final report indicating no offence is committed is critical. Legal Provisions and Precedents: - Bhagwant Singh v. Commissioner of Police (AIR 1985 SC 1285): Magistrate must give notice to the complainant and provide an opportunity to be heard before accepting a final report. - Gangadhar Janardan Mhatre v. State of Maharashtra (2004(7) SCC 768): Reiterates the need for notice to the informant before considering the final report. - H.S. Bains v. The State (1980 SC 1883): Magistrate has three options upon receiving a police report: drop action, take cognizance under Section 190(1)(b), or take cognizance under Section 190(1)(a) based on the original complaint. Conclusion: The Magistrate must issue notice to the complainant, consider objections, and decide on the final report. If the final report is accepted, the complainant can file a second complaint only under exceptional circumstances. Judgment Summary: The Magistrate's order taking cognizance without considering the final report is set aside. The Magistrate is directed to reconsider the final report after hearing the complainant and the prosecutor. The protest complaint should be treated as an objection to the final report. The Magistrate can conduct an inquiry under Sections 200 and 202 CrPC or order further investigation under Section 156(3) CrPC. The Magistrate must decide whether to issue process under Section 204 CrPC or dismiss the complaint under Section 203 CrPC. The complainant has the right to argue against the final report, but the accused has no right to participate at this stage.
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