Koshy, J.

Whether a Magistrate is competent to order further investigation after taking cognizance of the offence on the basis of police report filed under section 173(2) of the Code of Criminal Procedure (hereinafter referred to as (Cr. P.C.) and after appearance of the accused in pursuance of the summons issued? That is the only question to be decided in this criminal revision petition.

2. A learned Single Judge of this Court (Mr.T.M.Hassan Pillai,J.) decided the above question in the negative in Natarajan v. Sasidharan (2002 (1) KLT 1499). Reliance was placed by the learned Judge on the judgment of the Apex Court in Randhir Singh Rana v. State (Delhi Administration) (AIR 1997 SC 639). When this revision petition came up for hearing before the same Judge, a subsequent decision pronounced by another learned Single (Mr.G.Sasidharan, J.) in Joisy v. Sub Inspector of Police (2002 (3) KLT 172) was cited. In the above judgment relying the decision of the Apex Court in Sri.Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and others (AIR 1999 SC 2332), the learned Single Judge answered the question in the affirmative. Noticing the contrary view expressed in a subsequent decision and doubting the correctness of that judgment, this revision petition was referred to the Division Bench.

3. Before answering the questions, we may look into the facts of this case as legal questions arising in a case can be answered only on the background of the facts in each case.

4. Petitioner is one of the accused in C.C.No.610 of 2001 on the file of the Judicial Magistrate of the first class-II, Attingal. Third respondent herein is the defacto complainant in the above case. He was a member of Ayiroorkara Farmers Co-operative Society Limited. He applied for a loan from the Society and for that purpose he produced his non-liability certificate as well as non-liability certificate of surety one Mr.Divakaran Nair. But, according to him, instead of granting the loan to him, the non-liability certificates were misused and forged to give loan to another person, third accused. Loan was not sanctioned to the petitioner. But, recovery proceedings were taken against his surety Mr.Divakaran Nair. Then, he filed a complaint. Thereafter, recovery proceedings taken against his surety Mr.Divakaran Nair were dropped on the ground that the loan was repaid. According to him, because of the non-payment of money, he suffered loss and appropriate action should be taken against the culprits who dealt with the money of the co-operative society. FIR No.175 of 1996 was registered before the Mangalapuram police station. According to him, the Managing Director and President of the society have role in the forgery and fraud. But, instead of taking action on the basis of the FIR, the Circle Inspector of Police was threatening him to withdraw the complaint. According to him, when FIR was registered, name of the President of the Co-operative Society was left out purposefully because of the political influence. He filed Writ Petition before this Court contending that he is being harassed for filing the complaint and proper names are not mentioned in the FIR and crime should be investigated by some other agency. That writ petition (O.P.No.243 of 2001) was closed with an observation that the complainant should not be harassed. He filed writ appeal against that judgment. A statement was filed at that time before this Court that final report was filed naming three persons as accused and summons were already issued to them. He submitted that the real culprits were not included in the final report. According to him, this was manipulated because the then President of the Co-operative Society was the District Public Prosecutor also. The writ appeal was disposed of with the following observation:

"Now that the matter is pending trial before the Judicial First Class Magistrate-II, Attingal it is for the appellant to approach the said court in c