A.K. Trivedi, J.- Petitioners have filed instant petition for quashing of an order dated 15.04.2010 passed by Additional Chief Judicial Magistrate, Barh, Patna in Bakhtiyarpur P.S. Case No.208 of 2003 by which petitioners have been summoned to face trial for an offence punishable under Sections 147, 148, 149, 341, 323, 338,302 of the I.P.C.

2. Shorn of unnecessary details, S.I. Dillu Lohar recorded his own fardbeyan disclosing therein that while he proceeded to investigate the case bearing Bakhtiyarpur P.S. Case No.207 of 2003 under Section 387 of the IPC and reached at Tiraha Railway Station lying within market, he came to know that accused of Bakhtiyarpur P.S. Case No.207 of 2003 were being chased by a mob towards Railway Station, Bakhtiyarpur, over which he rushed and after arrival at Bakhtiyarpur Railway Station Platform, he found a mob assembled at its western flank which seeing the police, scattered. Then he saw one person in injured condition who disclosed his identity as Ripu Sadan and further that he happens to be FIR named accused of Bakhtiyarpur P.S. Case No.207 of 2003. He had further disclosed that mob chased him and assaulted him with lathi, brick bats. Accordingly, he was shifted to hospital from where he was referred to PMCH. Accordingly, FIR was registered against unknown and investigation proceeded. The injured during course of treatment succumb. After registration of the case, investigation commenced and after concluding the same final form was submitted showing the occurrence true but no clue. However, the learned C.J.M., differing there from took cognizance of an offence punishable under Section 147, 148, 149, 341, 323, 338, 302 of the I.P.C. and summoned the petitioners. Hence arose a cause for filing instant petition.

3. Contention on behalf of the petitioners are that the order impugned happens to be bad in law as well as on facts hence is fit to be set aside. Further submitted that the learned Magistrate adopted an illegal procedure while passing the impugned order in the background of the fact that at the relevant stage neither material placed by the I.O. in accordance of Section 173 Cr.P.C. was taken into consideration in its totality, nor it was rejected. In half baked manner, seen the same at the other hand also extended its tendrils towards protest petition available on record since before filed by mother of deceased which, for the present purpose, cannot be taken into consideration. Therefore, the procedure followed by the learned lower court happens to be contrary to law.

4. The learned A.P.P. fairly submitted that after concluding investigation, the investigating authority had found the occurrence true but having no clue on the basis of the materials collected during course of investigation. Also submitted that although the order impugned suggest that protest petition has been filed on behalf of informant but no such protest petition was filed on behalf of informant who happens to be police official himself. Further, submitted that consideration of protest petition at the present stage happens to be contrary to the spirit of law.

5. Perused the order impugned. Any police report submitted by investigating authority in accordance with Section 173 of the Cr.P.C. gives three options to the learned cognizance taking magistrate. (a) either to accept it (b) or differ from it (c) direct for further investigation. This principle has been settled at rest. If final report has been submitted then in that event before its acceptance, informant must be noticed and then thereafter after hearing and having protest petition on behalf of informant on record, after acceptance of final report will proceed on protest petition treating it as complaint petition and will follow procedure of complaint petition originating from Section 200 Cr.P.C.

6. The learned Magistrate while differing from conclusion of Investigating Officer, cannot take help of protest petition for taking of cognizance on police report un