In H.S. Bains (supra), there was a private complaint within the meaning of section 190(1)(a) of the code. The matter was referred to the Police under section 156(3). The Investigating Officer filed a final report. Therein, the court took view that apart from the power of the Magistrate to take cognizance notwithstanding the final report, under section 190(1)(b), he could also fall back upon the private complaint which was initially lodged but after examining the complainant and his witnesses, as contemplated under sections 200 and 202 of the code. In regard to taking cognizance under section 190(1)(b) of the code of a final report, undoubtedly, it is not necessary to examine the complainant and his witnesses though he may do so.
In Mahesh Chand (supra), no doubt the matter was commenced by a First Information Report and followed up by the complainant in the court under Section 190(1)(a) of the code. On the First Information Report, after investigation, a final report was filed. The final report came to be accepted and it was closed. This is despite the fact that there was a protest petition. A third complaint, as it were, came to be filed by the complainant. This court went on to hold that acceptance of the final report would not stand in the way of taking cognizance of a protest/complaint petition.
In Rakesh Kumar (supra), the final report was filed which was accepted by the Magistrate but he simultaneously directed the case to proceed as a complaint case, and statements under sections 200 and 202 of the code came to be recorded.
In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of the affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under section 161 of the code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under sections 200 and 202 of the code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined.