This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the petitioners-accused 2 to 4, having been aggrieved by the order of the learned XIII Additional Chief Metropolitan Magistrate, at Hyderabad, in Crl.M.P.No.3877 of 2013 in C.C.No.149 of 2013 (private complaint case) dated 23.10.2013.

2. The contention of the learned counsel for the revision petitioners is that the revision petitioners are the accused Nos. 2 to 4 in C.C.No.149 of 2013 and the learned Magistrate should have seen that once the police filed the final report from the investigation by chargesheeting only A.1 out of the 4 accused shown in the FIR, by non-chargesheeting or deleting from array of A.2 to A.4 who are the revision petitioners herein, the remedy of the complainant is to file a private complaint case for proceeding with as a protest petition for so taking as a private complaint that too after, recording sworn statement of defacto-complainant and statements of the witnesses, if any, under Section 200 to 204 Cr.P.C. and but for that or during trial under Section 319 Cr.P.C. as additional accused, there is no power to the learned Magistrate and thus taking of cognizance against these revision petitioners by the learned Magistrate on the final report of police even not shown them by police as accused is Judge is illegal and not sanctioned by law that too, only on the sworn affidavits filed and not by recording as contemplated by Section 200 of Cr.P.C. Hence, to set aside the impugned order.

3. Whereas, it is the contention of the learned counsel for the 2nd respondent/defacto-complainant that the learned trial judge is right in taking cognizance within his power under Section 190 Cr.P.C. for the case triable before the same Court and not even a committal proceedings, hence, to dismiss the revision.

4. Now the points that arise for consideration are:

1. Whether the impugned order of the learned XIII Additional Chief Metropolitan Magistrate, at Hyderabad, in Crl.M.P.No.3877 of 2013 in C.C.No.149 of 2013 (private complaint case) dated 23.10.2013 is unsustainable, if so, with what observations?

2. To what result?

Point No.1:

5. It is important to note that, out of the 4 accused arrayed, the police having registered the crime against them for the offences punishable under Sections 498-A,420,406 of I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, after investigation, filed the final report under Section 173 of Cr.P.C. by showing A.1 as sole accused by non-chargesheeting the other accused 2 to 4-the revision petitioners. It is therefrom, the learned Magistrate has taken cognizance on the final report only against the A.1.

6. In fact, the Magistrate is competent to take cognizance including those non-chargesheeting accused if at all from perusal of the chargesheet and investigation material relied on by the prosecution as the Magistrate is not bound by the referred report of the police. It is no doubt the complainant got a right of hearing before the Magistrate while considering the police report in so far as against the accused of FIR not chargesheeted to record so or even against the chargesheeted not to take cognizance as held by the Apex Court in Ajay Kumar Parmer Vs. State of Rajasthan (2012(12) SCC 406 at page 415) at para-20. It is as laid down in Motilal Songara vs. Prem Prakash @ Pappu (AIR 2013 SC 2078) that Magistrate is not bound to accept final report filed by the Investigating Officer and he can take cognizance and issue process against the person though exonerated by the investigating agency. It is for the Court to accept or reject the final report in part or toto after considering the material before it. Victim of the offence has right to get justice as accused.

7. However, instead of so doing if at all there is a material, the learned Magistrate has taken cognizance only against the chargesheeted sole accused-A.1 by directing to issue process for his appearance and not mentioned anything so far as non-chargesh