R.K.DASH, J. - (1.) HEARD the learned Counsel for the petitioners. Without issuing notice to O.P. No. 2, the case is disposed of at the stage of admission with consent of the learned Counsel for the petitioner and learned A.G.A. since the order propose to be passed will not affect the interest of O.P. No. 2.
(2.) THE fact of the case lie in a narrow compass. With regard to the incident that allegedly happened on 23 -7 -1999 O.P. No. 2 filed a petition under Section 156 (3) Cr. PC. before the Court of Civil Judge/Judi ­cial Magistrate, Chandauli, it is stated, the Magistrate called for a report from the concerned police, pursuant to which the police submitted a report that the allega ­tions made by O.P. No. 2 are false. Relying on such report, the Magistrate while rejecting the petition filed under Section 156 (3) Cr. P.C. by order dated 13 -2 -1999, copy where of at Annexure - 2, observed that the O.P. No. 2 complainant may file regular complaint. It was only thereafter that respondent No. 2 filed complaint which, it is stated, was dismissed for default. There after, she complained to Su ­perintendent of Police whereupon neces ­sary direction was given to the police con ­cerned to register a case and proceed with investigation. This is how an F.I.R. was registered and the case was investigated into and completion there of final report was submitted. Dissatisfied with the report, respondent No. 2 filed a protest petition. The Magistrate examined her and her witnesses and thereafter by the impugned order, copy whereof at An -nexure -4, took cognizance of the offence under Sections 452, 323, 504, 506 I.P.C. read with Sections 3 and 10 S.C. and S.T (Prevention of Atrocities) Act and issued summons to the petitioners and directed registration of a case as State case, that is to say, case arising out of police report Challenging the said order, the present petition is filed under Section 482 Cr. P.C. At the outset, I may observe that the procedure prescribed in the Code of Criminal Procedure has been given good ­ bye both by the police and the Magistrate. on a petition being moved under Section 156 (3) Cr. P.C, the Magistrate called for a report from the police in order to ascertain whether any FIR with regard to the inci ­dent has been registered or not. But after receipt of the order of the Magistrate, the police exercised power in a manner which is contrary to what has been provided in the Cr. PC. and submitted a report to the Magistrate that the allegations are false. Powers of police in the matter of investiga ­tion are provided in Chapter -XII of the Cr. P.C. When a report regarding commission of a cognizance offence is made, the police shall register a case and proceed with the investigation and on completion thereof, submit report, that means 'Charge - sheet' or 'Final Report' as the case may be as provided under Section 173 Cr. P.C. In the event 'Final Report' is submitted, different courses are open to the complainant, the details of which are not necessary to be gone into in the present fact situation. So, as the law provides, it is only after due investigation that the police has power to submit 'Final Report' if he comes to a conclusion that the investigation revealed that no such incident at all happened. In the present case, the said situation had not arisen. The Magistrate only called for a report and being armed with such order, the police submitted a report stating that the allegations are false. In my opinion the said report having no sanction under law should not have been taken note of and considered by the Magistrate while pass ­ing order (Annexure -2). Similarly, the learned Magistrate also failed in error. He should have indicated specifically as to what short of report he requires from the police before taking a decision under Section 156 (3) Cr. P.C. I may note, the Magistrate does not have power to call for a report as to truth or other wise of the allegations since the whole dispute is in embryo. However, in order to avoid multiplicity of registration of case, he can call for a report as to whether any report has been made and case registered with regard to the incident. In that view of the matter, the report sub ­mitted by the police in the present case being not one order under Section 173 Cr. P.C. the observation direction of the Magistrate that the respondent No. 2 may file complaint is also not sustainable.
(3.) NOW coming to the impugned order, after receipt of the 'Final Report' and on filing of a protest petition which is in nature of a complaint, the learned Magistrate examined the respondent No. 2 (complainant) and her witnesses. From this it appears that lowed the proce ­dure as provided in Chapter -XVI of the C.r. P.C. So after examination of the respon ­dent No. 2 and her witnesses when he found that there is prima facie case against the petitioners, he while taking cognizance should have passed the order that the case should proceed as a complaint case.;