JUDGMENT Hon’ble Vijay Kumar Verma, J.—”Whether the final report can be accepted without passing any order on the protest petition filed by the complainant in the case where prima facie offences are disclosed from the averments made in the FIR,” is the main legal question that falls for consideration in both these applications under Section 482 of the Code of Criminal Procedure (in short, ‘the Cr.P.C.’). 2. By means of Criminal Misc. Application No. 19770 of 2009, order dated 21.3.2009 passed by the Special Judge (D.A.A.), Jhansi in Criminal Misc. Case No. 690 of 2007 (Anil Kumar Vashisth v. Shiv Prakash and others) under Sections 395,397 IPC, P.S. Irach, District Jhansi is sought to be quashed, whereas in Criminal Misc. Application No. 19771 of 2009, prayer to quash the order dated 20.5.2009 passed by the Judicial Magistrate, Garotha in Criminal Misc. Case No. 52 of 2008 (Km. Bhanwati v. Badri and others) under Sections 379, 352, 504, 506 IPC P.S. Garotha, District Jhansi has been made. 3. Although different orders have been challenged by means of these applications under Section 482 Cr.P.C., but since the common legal question is involved in both these applications, hence for the sake of convenience, they are being decided by this common order. 4. Shorn of unnecessary details, the facts emerging from the recording leading to the filling of these applications, in brief, are that an FIR was lodged on 17.10.2007 by Anil Kumar Vashisth (applicant in Application No. 19770 of 2009) at P.S. Irach (Jhansi), where a case under Sections 395, 397 IPC at case Crime No. 320 of 2007 was registered against Sri Prakash, Ashok Kumar, Sri Ram, Ram Kumar, Lakhan Lal, Mahadev (opposite parties No. 2 to 7) and 30 unknown persons. After investigation, final report was submitted on next day i.e. 18.10.2007. Against that final report, the applicant Anil Kumar Vashisth filed protest petition in the Court of Special Judge, (D.A.A.), Jhansi in Criminal Misc. Case No. 690 of 2007. After hearing parties counsel, the learned Special Judge, (D.A.A.) Jhansi accepted the final report vide impugned order dated 21.3.2009, but did not pass any order on the protest petition. This order has been challenged in Application No. 19770 of 2009. On the basis of the application under Section 156 (3) Cr.P.C. moved by Km. Case No. 690 of 2007. After hearing parties counsel, the learned Special Judge, (D.A.A.) Jhansi accepted the final report vide impugned order dated 21.3.2009, but did not pass any order on the protest petition. This order has been challenged in Application No. 19770 of 2009. On the basis of the application under Section 156 (3) Cr.P.C. moved by Km. Bhanwati (applicant in Application No. 19771 of 2009), an FIR was registered in pursuance of the order passed on that application on 20.7.2008 at P.S. Garotha, where a case under Sections 379, 352, 504, 506 IPC was registered at case Crime No. 378 of 2008 against Badri, Phool Singh, Ajay, Indra Kumar and Hari (opposite parties No. 2 to 6). After investigation of this case also, final report was submitted by the investigating officer, against which the applicant Km. Bhanwati filed protest petition on 14.12.2008 in Criminal Misc. Case No. 52 of 2008 in the Court of Judicial Magistrate, Garotha, who vide impugned order dated 20.5.2009 accepted the final report, without passing any order on the protest petition. This order has been challenged in Criminal Misc. Application No. 19971 of 2009. 5. I have heard arguments of Sri R.K. Kaushik, Advocate appearing for the applicants and AGA for the State. Since the accused/opposite parties had no right to participate in the proceedings, which have arisen due to submission of final report and filling of protest petition by the complainants (applicants), hence notices have not been issued to the accused/opposite parties in both the cases. 6. The first and foremost submission made by the learned counsel for the applicants was that at the time of disposal of the final reports, the learned Courts below were bound to treat the protest petitions of the complainants as complaint and after adopting the procedure laid down in Chapter XV Cr.P.C., order under Section 203 or 204, as the case may be, ought to have been passed and since this procedure was not followed by the Courts below while deciding the final reports and protest petitions, hence, the impugned orders being wholly illegal should be set aside and the cases be sent back to the Courts below for passing fresh order on the protest petitions filed by the complainants against the final reports treating the same as complaints and following the procedure under Sections 200 and 202 Cr.P.C. 7. The learned A.G.A. on the other hand submitted that the Magistrate is not bound in each and every case to treat the protest petition as complaint, and hence, there is no scope to make any interference by this Court in impugned orders, as the said orders do not suffer from any legal infirmity. 8. Having taken the submissions made by the parties’ counsel into consideration and after carefully going through the averments made in the First Information Reports in both the cases, I am of the opinion that in present cases, the protest petitions filed by applicants against the final reports, ought to have been treated as complaint and after following the procedure laid down under Chapter XV Cr.P.C., order under Section 203 or 204 Cr.P.C., as the case may be, should have been passed. 9. There is no provision in the Code of Criminal Procedure to file the protest petition against the final report. However, the Hon’ble Apex Court in the case of Bhagwant Singh v. Commissioner of Police (supra) held that when on consideration of the report made by the Officer Incharge of the Police Station under sub-section (2) (i) of Section 173 Cr.P.C., the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard, so that he can make his submission to persuade the Magistrate to take the cognizance of the offence and issue process. Similar view has been expressed by the Hon’ble apex Court in the case of Gangadhar Janardan Mhatre v. State of Maharashtra case (supra). It is further held in Gangadhar Janardan Mhatre case (supra) that in a case where the Magistrate, to whom a report is forwarded under sub-section (2)(i) of Section 173 Cr.P.C., decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. There is nothing in both the rulings that in each and every case the Magistrate is bound to adopt the procedure of complaint case on the protest petition. There is nothing in both the rulings that in each and every case the Magistrate is bound to adopt the procedure of complaint case on the protest petition. Only the opportunity of hearing is to be granted to the informant at the time of consideration of the final report. If from the allegations made in the First Information Report any criminal offence is not prima facie disclosed, then the Magistrate is not bound to treat the protest petition as complaint and in such case after dismissing the protest petition, the final report may be accepted. However, if any case, from the averments made in the First Information Report, prima facie criminal offence is disclosed, but the material in the case diary submitted with the final report is not sufficient to take cognizance and to issue process against the accused, then in such case, as held by this Court in the cases of Anil Kumar Chauhan v. State of U.P. and Mohd. Yusuf v. State of U.P. (supra), the accused cannot be summoned to face the trial merely on the basis of the protest petition and other material including affidavits filed in support thereof without following the procedure laid down under Sections 200 and 202 Cr.P.C. 10. The Division Bench of this Court in the case of Pakhandu v. State of U.P. (supra) after making reference of certain decisions of Hon’ble Apex Court has held as under in para 14 of the report at page 2546 : “14. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require : (i) he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (ii) he may take cognizance under Section 190 (1) (b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (iii) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (iv) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a), upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. 11. From the aforesaid observations of the Division Bench also, it is clear that the Magistrate is not bound to treat the protest petition as complaint in each and every case and if the Magistrate agreeing with the conclusions arrived at by the police decides to accept the final report and to drop the proceedings, then opportunity of hearing has to be given to the complainant before passing order on the final report. According to the Pakhandu case (supra), the fourth course open to the Magistrate is that without issuing process or dropping the proceedings, he may decide to take cognizance under Section 190 (1) (a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter to decide whether the complaint may be dismissed or process should be issued. The procedure of fourth course of Pakhandu case (supra) should be followed in the cases where prima facie offences are disclosed from the averments made in the First Information Reports, but in the cases, where the First Information Report does not disclose any criminal offence and final report is submitted by the investigating officer, then there is no justification in such cases to compel the Magistrate to treat the protest petition against final report as complaint and to follow the procedure laid down in Chapter XV Cr.P.C. 12. In view of the observations made hereinabove, let us now see whether in instant cases, the learned Courts below were justified in accepting the final report without passing any order on the protest petitions. Annexure 12 in Criminal Misc. Application No. 19770 of 2009 is the copy of the FIR of case Crime No. 320/2007 of P.S. Erach (Jhansi). On the basis of the averments made in this FIR, prima facie offences are disclosed. In the like manner, from the averments made in the First Information Report (Annexure-1 of Criminal Misc. Application No. 19771 of 2009) of case Crime No. 378 of 2008 of P.S. Garotha (Jhansi), prima facie offences are disclosed. Therefore, if the materials in the case diary submitted with the final reports by the Investigating Officer in both these cases were not sufficient to take cognizance against the accused persons, then having regard to the allegations made in the First Information Reports, the protest petitions of the applicants ought to have been treated as complaint and after following the procedure laid down in Chapter XV Cr.P.C., the Courts below ought to have decided whether the complaint may be dismissed or process against the accused should be issued. In case the process is issued against the accused, then the final report has to be rejected. 13. The Hon’ble Apex Court in the case of Mahesh Chand v. B. Janardhan Reddy and another, 2003 (46) ACC 182, has held that even after accepting the final report, cognizance of the offence can be taken on the complaint/protest petition filed by the complainant on the same or similar allegations. Therefore, having regard to the law laid down by the Hon’ble Apex Court in the case of Mahesh Chand v. B. Janardhan Reddy (supra) and the observations made by the Division Bench of this Court in the case of Pakhando v. State (supra), it would be in the interest of justice to send the cases back to the Court below for passing order on the protest petitions treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C. 14. Consequently, both the applicants under Section 482 Cr.P.C. are allowed. Consequently, both the applicants under Section 482 Cr.P.C. are allowed. Setting aside the impugned orders, the Courts below are directed to pass orders on the protest petitions filed by the applicants against final reports in both the cases, treating the same as complaint and following the procedure laid down under Sections 200 and 202 Cr.P.C. 15. This order shall form part of the record of Criminal Misc. Application No. 19770 of 2009 and copy thereof will be kept on the record of Criminal Misc. Application No. 19771 of 2009. ————