Hon’ble Mrs. Saroj Bala, J.—This criminal revision is directed against the order dated 28.2.2001 passed by the II Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Bijnor, in case No. 76 of 2001, Zeeshan v. Yusuf and others, whereby summoning the revisionists for the offences punishable under Sections 147, 323, 452, 504, 506, I.P.C.

2. The facts giving rise to the revision broadly stated are these :

An application under Section 156 (3) Cr.P.C. was moved by the Opposite Party No. 2 alleging that on 10.8.1998 at about 1 p.m. the accused-revisionists came armed with lathi and sticks to the house of the complainant and using abusive language subjected him to assault with lathi, sticks, kicks and fists. The S.H.O., Chanadpur was directed by the A.C.J.M., II to register and investigate the allegations made in the application. The First Information Report was registered on 18.9.1998 as case Crime No. Nil of 1998 under Sections 147, 323, 452, 504, 506, I.P.C. After investigation final report was submitted by the police. Notices were issued to the complainant. A protest petition alongwith affidavits of complainant and witnesses Mehaboob Raza and Naiyar was filed. By the impugned order the cognizance under Section 190 (1)(b) of Code of Criminal Procedure was taken on the basis of protest petition and affidavits filed in support thereof.

3. The contention of the revisionists is that the Magistrate committed illegality by summoning the revisionists without recording statements of the complainant and witnesses under Sections 200 and 202, Cr.P.C.

4. Heard Sri Akhtar Husain, learned Counsel for the revisionists, Sri V.M. Zaidi and Sri A.M. Zaidi, learned Counsel for the opposite party No. 2, the learned A.G.A. and have perused the record.

5. The learned Counsel for the revisionists argued that on receipt of the protest petition with affidavits the Magistrate was empowered to take cognizance only under Section 190 (1) (a) of the Code of Criminal Procedure treating the protest petition as a complaint and adopting the procedure of complaint case as contained in Chapter XV of the Code of Criminal Procedure. The learned Magistrate having not taken cognizance straightaway on final report, the provisions of Section 190 (1) (b) were not applicable.

6. On the other hand the learned A.G.A. and learned Counsel for the opposite party No. 2 contended that the Magistrate had jurisdiction to summon the revisionists after taking cognizance under Section 190 (1) (b) of the Code of Criminal Procedure.

7. The Apex Court in Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117, held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge-sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, not withstanding the contrary opinion expressed in the police report. It was observed therein that the Magistrate in that event could take cognizance under Section 190 (1)(c) of the Code. The reference to Section 190 (1)(c) was a mistake for Section 190 (1)(b) as pointed out in a later decision of H.S. Bains v. State, 1981 (18) ACC 146 (SC).

8. In H.S. Bains (supra), it was held by the Apex Court that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173 (2) Cr.P.C. The Magistrate may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statemen