JUDGMENT : B.S. Sinha, J. This application is directed against, the ORDER :dated 31.1.1977 passed by the Chief Judicial, Magistrate, Patna, in Pirbahore Police station case no. 34 (3) 75 of 1975 (G.R. 1122 of 1975). By this ORDER :the learned Magistrate has taken cognizance of certain offences against one Noor Jahan opposite party no. 6, and agreeing with the final report submitted by the police bas discharged the opposite parties no. 1 to 5. 2. On 17.3.1975 at 8.00 P.M., the petitioner, who is a lecturer in Arvind Girls College, Patna, lodged a written report with the Pirbahore Police alleging therein that at 4.00 P.M. that evening when her husband was out on some professional work, opposite party no. 1 her landlord along with his mother, sisters, two daughters and maid servant, Noor Jahan went into the flat of the petitioner and at the instance of Ghulam Haider, opposite party no. 1, the opposite parties no. 2 to 6 started abusing and slapping the petitioner and her children. The petitioner slapped and assaulted even with shoes and out of a pair one was left behind. It was also stated therein that certain money jewellery and articles had been carried away by the members of the opposite party. Occurrence according to the petitioner had been seen by two Advocates who were the colleagues of her husband and the neighbours. On these allegations the above mentioned police: case was instituted and investigation taken up. 3. On 4.4.1975 the petitioner filed a protest petition in the court of the Chief Judicial Magistrate' stating therein that she had an apprehension that the Police was in collusion with the members of the opposite party and would accordingly submitted a final report in their favour. In this protest petition all the facts regarding the occurrence on 17.3.75 was stated. The concluding portion of the protest petition ran thus:- “It is therefore, prayed that in view of the above circumstances your honour will be pleased to keep this protest petition on the record of the case and treat the same as a regular petition of complaint on behalf of the petitioner in case the Police submits final report, in the case, and also prays further that a copy of this protest petition be forwarded to the Senior Superintendent of Police, Patna, and D.I.G., Central Range, Patna, for information and necessary action.” 4. On 5.12.1975 the police submitted its final form in which they recommended prosecution of opposite party no. 6, Noor Jahan, only and further recommended to discharge opposite parties no. 1 to 5. Thereafter on 6.8.1976 the learned Magistrate heard arguments on behalf of the petitioner as well as the opposite party with regard to the question of taking cognizance. ORDER :-sheet dated 20.9.1976 shows that the learned Magistrate for certain reasons, wanted to hear the parties again. Thereafter, the matter was again re-heard on 15.1.1971 when both the parties were heard. After hearing them the impugned ORDER :was passed. 5. In support of this application two submissions have been made. The first is that as the protest petition filed by the petitioner amounted to a complaint petition the learned Magistrate was bound in law to examine the complainant that is, the petitioner on solemn affirmation before passing any ORDER :s. The learned Magistrate having not done so the impugned ORDER :is fit to be set aside. The second submission' is that the learned Magistrate committed an illegality by hearing the opposite parties before taking cognizance in the case. There is substance in both the submissions made on behalf of the petitioner. 6. It has repeatedly been held I by this court that if a protest petition bas all the Ingredients of a complaint as en grafted in Section 2(d) of the Code of Criminal Procedure then the court must consider it to be complaint petition and examine the complainant on solemn affirmation (See 1974 PLJR 476 ). I have already stated above that in the protest petition it was stated that some known persons had committed an offence and the prayer portion or it shows that this statement was made with a view to the Magistrate taking action under the Code of Criminal Procedure. As such as there is no escape from the fact that the protest petition was a complaint within the meaning of the provisions of the Code of Criminal Procedure. Mr. K.P. Verma, appearing for the opposite party, urged that it was not a complaint petition inasmuch as there is nothing to indicate that the petitioner wanted any action to be taken on this. I am unable to agree. Mr. K.P. Verma, appearing for the opposite party, urged that it was not a complaint petition inasmuch as there is nothing to indicate that the petitioner wanted any action to be taken on this. I am unable to agree. The concluding portion which I have quoted above clearly states that the complainant wanted that the protest petition should be treated as a regular petition of complaint on behalf of the petitioner in case the Police submits a final report in this case. The petitioner, therefore, had made it abundantly clear that she was filing this petition as a complaint petition in case the police submits a• report adverse to her. 7. There is also no provision in the Code under which the accused I persons can be heard before cognizance is taken. In the instant case by referring to the ORDER :-sheet of the learned Magistrate dated 6.8.1976 and 15.1.1977 it is abundantly clear that the learned Magistrate even heard the accused persons on the question of taking cognizance. This is contrary on the provisions of the Code of Criminal Procedure. 8. For the reason, given above I am of the view that the impugned ORDER :, to the extent that opposite parties no. 1 to 5 has been discharged, must be set aside. The learned Magistrate will now examine the petitioner on solemn affirmation and then act in accordance with the provisions of law. 9. In the result the application is allowed. Application allowed