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8. It is also to be noted that prior to that both FIRs were closed before the Lok Adalath on the ground of limitation. Thereafter, the same was set aside by this Court in Crl.O.P.No.6755 of 2016. It is relevant to note that in the protest petition filed as against the dropping of proceedings, defacto complainant questioned the findings of the investigating officer. The Protest Petition entirety seen there is no allegation as to the nature of offences said to have committed by the Petitioner. The Protest Petition was in the form of questioning the finding of the Investigating Officer. It is nowhere alleges in the protest petition about the occurrence. https://www.mhc.tn.gov.in/judis and Crl.M.P.Nos.5220 and 5221of 2017 Ultimately, the relief is sought in the protest petition is that a suitable direction for the reinvestigation by the high ranking officer viz., Deputy Superintendent of Police, Railway Police or by an officer not below the Rank of Inspector of police under the supervision of Deputy Superintendent of Police or Railway Police. Nowhere allegations have been made in the petition to treat it as complaint. Learned Magistrate did not accept for re-investigation or further investigation however rejected the negative report filed by the police and treated the protest petition as private complaint.

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 separte 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 https://www.mhc.tn.gov.in/judis and Crl.M.P.Nos.5220 and 5221of 2017 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] wherein it is held as follows:

“6. … In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was 'it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.' This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 Cr.P.C. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a https://www.mhc.tn.gov.in/judis and Crl.M.P.Nos.5220 and 5221of 2017 prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.”

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 https://www.mhc.tn.gov.in/judis and Crl.M.P.Nos.5220 and 5221of 2017 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.