Honble R.K. Rastogi, J.—This is an application under Section 482, Cr. P.C. for quashing the order dated 30-11-2006 passed by the C.J.M., Mainpuri in F.R. No. 542 of 2006, Vijai Kumar Jain v. Akhil Kumar Jain, under Sections 498A/406/504/506, I.P.C. P.S. Kotwali Mainpuri.

2. The facts relevant for disposal of this application are that an application under Section 156(3), Cr.P.C. was moved by Vijay Kumar Jain (opposite party No. 2) against the accused persons and on the basis of the order of the Magistrate on that application the police of police station Kotwali Mainpuri registered the case under Sections 498A,406, 504 and 506, I.P.C. and 3/4 Dowry Prohibition Act, and investigated the same. However, after investigation the police submitted final report in the case The opposite party No. 2 filed a protest petition against that final report. Learned Magistrate heard the complainant on that protest petition and recorded his statement as well as the statement of his daughter Mukti Jain. Thereafter he rejected the final report and allowed the protest petition and summoned the accused persons and further ordered that the case shall proceed as a ‘State Case.’ Aggrieved with that order the accused applicant has filed this application under Section 482, Cr.P.C.

3. I have heard Sri V.P. Gupta, learned Counsel for the applicant as well as the learned A.G.A. for the State.

4. It is to be seen that where the final report submitted by the police is rejected and the accused are summoned only on the basis of evidence in the Case Diary, the case can proceed as a State Case, but when the Magistrate records statements of the complainant and other witnesses and summons the accused on the basis of those statements, then the case cannot proceed as a State Case but it shall proceed as a complaint case. In the present case the learned Magistrate has summoned the accused persons on the basis of statements of complainant Vijai Kumar Jain and his daughter Mukti Jain. Under these circumstances, the case could not be treated to be a State case and the proper course for the learned Magistrate, after being satisfied that prima facie case was made out against the accused persons, was to treat it as a complaint case. The order passed by the learned Magistrate is, therefore, not in accordance with law and is liable to be set aside.

5. Accordingly, this application under 482 Cr.P.C. is allowed. The impugned order dated 30-11-2006 passed by the C.J.M., Mainpuri in F.I.R. No. 542 of 2006, Vijai Kumar Jain v. Akhil Kumar Jain, under Sections 498A/406/504/506, I.P.C. P.S. Kotwali, Mainpuri is set aside. The learned Magistrate after receipt of record as well as a certified copy of this order shall again consider the evidence produced before him, and then, in case he finds that there is sufficient evidence for summoning the accused persons, he shall pass suitable order in the matter treating the case to be a complaint case.

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