9. As already discussed in the protest petition no whisper whatsoever made as to allegations levelled against the petitioner. Sufficient averments as to the offence totally absent in the protest petition. Rather it is only questioning the findings of the investigating officer on various grounds. It is relevant to note that to take cognizance of the office, there must be a complaint either by way of separate complaint or necessary allegations must be found in the protest petition. “Complaint” means any allegation made in orally or in writing to a magistrate, with a view to taking action under the Code, test some person whether known or unknown has committed an offence, that does not include a police report. Of course, there is no bar under law to treat the protest petition as a complainant to take cognizance by following procedure under Section 200 and 202 of Cr.P.C. Before invoking such procedure to take cognizance, the protest petition must contain the necessary averments to attract the offences to treat as a complaint. Whereas in the entire protest petition in this case is only in the form of questioning the action of the investigating officer filing a negative report. In fact prayer was sought for in the protest petition is for reinvestigation. In this regard it is useful to refer the judgment of the apex Court reported in Vishnu Kumar Tiwari vs. State of U.P. [(2019) 8 SCC 27].
11. Considering the above judgements the fact that when the ingredients of the offence or allegation were absent in the protest petition, treating the same as a private complaint by the learned Magistrate indicate that he has not applied his mind and he has treated the petition as private complaint casually even without going through the complaint. Therefore, treating such protest petition which is bereft of details, as the private complaint is not according to law. Thereafter followed the procedures and explained the witnesses also is not according to law. Only when there is proper allegations found in the protest petition which is to be treated as complaint, which is absent in the protest petition. Therefore, merely on the basis of the procedure followed under Section 202 of Cr.P.C. by examining three witnesses, taking cognizance by the learned Magistrate is not according to law.
PARTY: Ajeet Kumar Saxena vs. S. Jayashree – Crl.O.P.No.7218 of 2017 and Crl.M.P.Nos.5220 and 5221of 2017 – 25-01-2022.
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