Whether a Magistrate is bound to send a notice to an informant while considering the final report submitted by the Police under Section 173 (2) of the Code of Criminal Procedure in spite of the fact that informant appeared before the court at the time of consideration? Whether a Magistrate is competent to proceed with the original private complaint, when a final report is filed by the Police under Section 173 (2) after an investigation as directed by the Magistrate under Section 156 (3) of the Code of Criminal Procedure in the private complaint? Whether a private complaint is maintainable once a final report under Section 173 (2) is submitted by the Police. These are the important question of general importance to be decided in this case.

2. The factual matrix of the case relevant for a proper understanding of the question in brief is as follows:- First respondent filed C.M.P.2163/02 before Judicial First Class Magistrate, Kozhikode against the revision petitioner contending that petitioner committed the offences under Sections 420, 506 (1) of I.P.C. The allegation in the complaint was that petitioner induced first respondent to join his partnership business at Shaija and first respondent was persuaded to part with Rs.18.5 lakhs on different occasions. Violating the conditions petitioner failed to give the share of profits to the first respondent. He also did not pay back the amount paid by the first respondent. Petitioner also threatened first respondent and his son when first respondent demanded back the amount. Petitioner thereby committed offence under Sections 420 and 506 (1) of I.P.C. As per order dated 17-4-2003, learned Magistrate forwarded the complaint to Station House Officer, Nadakkavu Police Station for directing investigation as provided under Section 156 (3) of Cr.P.C. The Sub Inspector of Police registered a First Information Report and investigated the case. After completing investigation final report dated 11-7-2002 finding that the dispute is of civil nature was prepared. Copy of the final report with a notice as provided under Section 173 (2) (ii) of Code was sent to first respondent. On receipt of the same, first respondent filed C.M.P.7489/02 a complaint filed under Section 190 (1) of Cr.P.C. requesting the court to take cognizance of the offences. First respondent produced copy of the final report and the notice received by him along with that complaint. It was filed on 25-9-2002. By that time the final report was not filed before the court. It was filed before the court only on 11-12-2002. Learned Magistrate as per order dated 25-9-2002 directed the petition to be put up after receipt of the final report. After receipt of the final report, learned Magistrate clubbed the complaint with the refer report and recorded the sworn statement of first respondent and his witness and as per order dated 11-2-2003 directed to issue summons to the revision petitioner, after taking the caw on file as complaint case for the offences under Sections 420 and 506 (2) of the Code. Accused is challenging the said order in the revision.

3. Revision petitioner would contend that learned Magistrate has no jurisdiction to take cognizance, of the offence in the private complaint filed by the first respondent before deciding what action has to be taken in the final report submitted by the Police and in any event Magistrate has no jurisdiction to entertain a second complaint and the complaint taken cognizance of by the learned Magistrate which is in the nature of a protest complaint is not maintainable in law and therefore the order taking cognizance of the offence by the learned Magistrate is unsustainable.

4. Advocate Mr. T.G. Rajendan, learned Counsel appearing for revision petitioner vehemently argued that the very procedure adopted by learned Magistrate is illegal and for that sole reason the order taking cognizance of the offence is to be set aside. The argument of the learned Counsel is that though first respondent