JUDGMENT Muneshwary Sahai, J. This application is directed against an order dated the 29th January, 1976, passed by the Chief Judicial Magistrate, Muzaffarpur, by which he took cognizance against the petitioners for offences under Sections 147, 148, 323, 324 and 379 of the Indian Penal Code. The petitioners pray that the impugned order be quashed and that their prosecution itself in trial no. 659 of 1976 pending in the court of Sri S. P. Singh, Judicial Magistrate 1st Class, Muzaffarpur, be also quashed. 2. Opposite party no. 1, Upendra Tiwari, had filed a complaint against the petitioners on 12.6.1974 before the Chief Judicial Magistrate, Muzaffarpur. It is not necessary to refer to the allegations made in the complaint in any detail. Suffice it to point out that the complainant alleged that the petitioners were catching fish in his pond and when he protested they subjected him to brutal assault. The learned Chief Judicial Magistrate on receipt of the complaint forwarded the same to the police for institution of the case on its basis. The police, accordingly, drew up a first information report and started investigation in the case. On the 17th August, 1974, the complainant filed a protest petition before the learned Magistrate in which he alleged that the police had gone in collusion with the petitioners and he prayed that the cognizance be taken against the petitioners and they may be put on trial. The police submitted final report in the case on the 13th January, 1975. The police found the allegations made by the complainant as untrue. The Chief Judicial Magistrate called for the case diary, so that the police report and the protest petition could be heard. Even after reported adjournments, however, the case diary was not produced before the learned Magistrate. On the 29th January, 1976, therefore, the learned Magistrate examined the complainant (opposite party no. 2) on solemn affirmation and recorded the following order which is being impugned in this case:- "Complainant files hazri and is present with his lawyer. Case diary not produced by A.P.P.I. though sufficient time given for the purpose. The complainant had filed a protest petition on 17.8.74 which has been moved today. Prayer was made in that petition to take cognizance and to put the accused persons on trial. Case diary not produced by A.P.P.I. though sufficient time given for the purpose. The complainant had filed a protest petition on 17.8.74 which has been moved today. Prayer was made in that petition to take cognizance and to put the accused persons on trial. Since the complainant is present in court, it is necessary to examine him on S.A. As such complainant examined on S. A. Heard complainant's lawyer and considered the materials available on the record and also the statements made by the complainant on S.A. A prima facie case under section 147 / 148 / 323 / 324 / 379/ of I.P.C. is made out against accused persons. The final report submitted by the police is rejected and cognizance is taken under the aforesaid sections. The case is transferred to the Court of Sri S.P. Singh, Judicial Magistrate, 1st Class for favour of disposal in accordance with law. Fix 24. 2. 76. Issue processes. Steps to be taken." 3. Learned counsel for the petitioners has raised two objections against the legality of the aforesaid order. He has, firstly, contended that the protest petition on which the learned Magistrate has proceeded to take cognizance against the petitioners was not a complaint within the definition of the expression as given under Section 2 (d) of the Code of Criminal Procedure, 1973. Therefore, it is submitted that no cognizance could have been taken on that protest petition. Secondly, learned counsel submits that the record of the learned Magistrate shows that when the police had submitted final form in this case, the learned Magistrate did not feel satisfied with the same and for that reason he was insisting on the production of the case diary before him. The case diary, however, was not produced. Therefore, learned counsel submits that there was no fresh material before the learned Magistrate when he passed the impugned order which could induce him to take cognizance against the petitioners. 4. The prayer of the petitioners has been opposed on behalf of the State as also on behalf of the complainant opposite party no. 2. 5. Learned counsel for the petitioners has submitted that the protest petition did not state the facts of the occurrence and it merely referred to the complaint petition, which had been filed earlier and which had been sent to the police for the institution of the occurrence. 2. 5. Learned counsel for the petitioners has submitted that the protest petition did not state the facts of the occurrence and it merely referred to the complaint petition, which had been filed earlier and which had been sent to the police for the institution of the occurrence. It is for this reason, that it is submitted that it was not a complaint, but it was a mere protest against the fairness of the investigation. I am unable to agree with this submission. In the protest petition, a copy of which is annexure 1' to this application, the complainant stated "that the accused persons committed the serious offence of rioting, assault and fish loot and the petitioners complained before this court with medical certificates and your honour bas been pleased to refer the complaint to police for report after F.I.R." The complainant prayed that in case the police submitted adverse report, the Magistrate be pleased to take cognizance and put the accused on trial. It is true that the complainant bad not mentioned the facts of the occurrence in detail in this protest petition. But, I see nothing wrong about his referring to his earlier complaint petition which had been sent to the police for the institution of the case and in which the facts had been stated in detail. The complainant did mention in the protest petition that the accused had committed offence of rioting, assault and fish loot and he had prayed, as pointed out above, that the cognizance be taken against them. In my opinion, the protest petition conforms with the definition of complaint, as given in Section 2 (d) of the Code. 6. In my view the second submission of learned counsel for the petitioners is equally misconceived. The learned Magistrate was taking cognizance on a complaint treating the protest petition as a petition of complaint. He had, therefore, examined the complainant on solemn affirmation. Evidently, therefore, it would not have been competent for the learned Magistrate to examine the case diary for the purpose of taking cognizance against the petitioners on a complaint. Indeed, if he had examined the case diary for that purpose, his order would have been vitiated. The learned Magistrate, of course, has stated in the impugned order that he had considered the materials on the record and also the statements made by the complainant on solemn affirmation. Indeed, if he had examined the case diary for that purpose, his order would have been vitiated. The learned Magistrate, of course, has stated in the impugned order that he had considered the materials on the record and also the statements made by the complainant on solemn affirmation. The final report, of course, was on the record, but it would be idle to contend that the learned Magistrate was influenced by the final report which was in favour of the petitioners for taking cognizance against them. 7. In my opinion, there is no illegality in the impugned order of the learned Magistrate which can call for an interference. The application is, accordingly, without any merit and is dismissed. Application dismissed.