( 1 ) HEARD Sri S. K. Dubey advocate holding brief of Sn B. N. Singh advocate learned counsel for the applicant, at a great length and the learned AC A on behalf of respondent State.

( 2 ) THE applicant has prayed for quashing of proceeding of complaint case being complaint case no, 164 of 2005 Smt Rati vensus Chotey Lal and another under sections 376/504/506/323ipc and 3 (1) (12) sc/st Act PS Nadigaon, District Jalaun pending before Judicial magistrate Oral District Jalaun.

( 3 ) IN the nut shell, the allegation of the complainant Smt. Rati is that she is a resident of village Bahkhrol and is a poor women of scheduled tribe Bachor. Her husband harrnukh was doing the work a labourer in village Richora, Gwalior. On 30-3-96 at 8 am, the complainant Smt. Rati was going to her husband when Chotey lal , armed with a gun and Ram Babu both resident of her village, all of a sudden came from behind, caught hold of her from behind, took her to a drench in village Arjunpura which is near the way and there hurled caste abuses on her and Chote lal threw her on the ground and, without her consent, committed rape on her as a result of which she received injuries and her bangles were broken. Ram babu during this ghastly act, armed with the gun of Chotey Lal, was threatening her with dine consequences. On her hue and cry chadama, Dinesh Kumar, Smt. Mani and govind Das reached at the spot and challenged the accused who escaped from there threatening to annihilate her family if she reported this incident. The victim came to kotwali Oral and lodged a report. She was got medically examined by the police in district women hospital , Police of police station Katwali also seized her petticot which was stained with semen. Police also recovered her broken bangles from the spot. As the police did not do any thing in the matter , the complainant Smt. Rati filed a complaint in the court of the magistrate, in which her medical examination report was summoned by the court from the police, but meanwhile, due to suffering from tuberculosis, she could not appear in the court on 2-6-2003 as a result of which her complaint was dismissed by the court for her absence. After recovery she is again filed the complaint. The complainant prayed for summoning the accused and punish them for offences committed by them. Under Section 200 Cr. P. C. the complainant examined herself and supported her allegations in full. Smt Rati, under section 202 Cr. P. C. examined her witnesses govlnd Das PW 1 and Smt Manni PW 2. The two witnesses also supported her version on all material aspect of the case. She also file her medical report ( Paper No. 14 Ga) and pathologist report ( Paper No. 15 Ga ). The learned Judicial Magistrate Orai on the above evidence summoned the applicant for offence under sections 376/504/506/ 323ipc and Section 3 (1) (10) (12) SC/st act vide its order dated 1-12-2005. Hence this application under section 482 Cr. P. C. for quashing of the said case.

( 4 ) THE learned counsel firstly contended that in this case the police after investigation had submitted a final report but instead of filing a protest petition complainant Smt. Rati, respondent no. 2 filed the complaint which was not maintainable and the complainant had no right to maintain a complaint before any order is passed on final report by the magistrate which was pending for bis consideration. He secondly, contended that the Magistrate should not taken cognizance during the consideration on final report on such a complaint. He lastly, submitted that since the complainant had not examined her all the witnesses under section 202 (2) Proviso Cr. P. C. the proceeding must be quashed as the procedure is against the provisions or section 202 (2) Proviso Cr. P. C. The first two submissions of the counsel for the applicant are intertwined and therefore are take up simultaneously. When a FIR is registered into a cognizable offence the police gets a right to investigate it, with out the order from the magistrate,

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