Honble Vijay Kumar Verma, J.—By means of this revision preferred under Section 397 of the Code of Criminal Procedure (in short the ‘Cr.P.C.’), order dated 4.12.2003, passed by the Judicial Magistrate-I Gorakhpur, in the criminal case arising out of Crime No. 333 of 2002 (State v. Ramesh and others), under Sections 323, 325, 504, 506, 452, IPC, P.S. Sahjanwa, District Gorakhpur and the order dated 17.5.2004, passed by the Additional Chief Judicial Magistrate, Court No.13, Gorakhpur in the said case have been challenged.

2. By the impugned order dated 4.12.2003, the revisionists (hereinafter to be referred as ‘the accused’) were summoned to face the trial under Sections 323, 504, 506, 325, 452, IPC after rejecting the final report submitted by the police of P.S. Sahjanwa district Gorakhpur in Case Crime No. 333 of 2002 and by the impugned order dated 17.5.2004, application dated 6.12.2003 moved by the revisionists to recall that summoning order has been rejected.

3. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that the complainant Shri Narayan s/o Ram Dev resident of village Gopapur, P.S. Sahjanwa, District Gorakhpur (opposite party No. 2 herein) lodged an FIR on 17.7.2002 at P.S. Sahjanwa, where a case under Sections 323, 325, 504, 452, 506, IPC was registered at Crime No. 333 of 2002 against (1) Ramesh s/o Kailash (2) Ramchandra and (3) Jagdish both sons of Santosh Kumar (revisionists herein). After investigation, final report was submitted by the police, against which the complainant filed protest petition. The accused also filed objections against that protest petition. After hearing the counsel of the parties, the learned Judicial Magistrate-I Gorakhpur vide impugned order dated 4.12.2003 summoned the accused for trial after rejecting the final report. Thereafter, the accused moved an application on 6.12.2003 to recall the said summoning order. That application has been rejected vide impugned order dated 17.5.2004 passed by the Additional Chief Judicial Magistrate Court No. 13 Gorakhpur. Hence this revision.

4. When the case was taken up in the revised list, the counsel for the opposite party No. 2 did not appear. Hence I have heard arguments of Sri Manoj Kumar Advocate, holding brief of Sri B.K. Tripathi learned counsel for the revisionists and learned AGA for the State.

5. The main submission made by the learned counsel for the revisionists was that the accused have been summoned to face the trial vide impugned order dated 4.12.2003 on the basis of the protest petition filed by the complainant against the final report without following the procedure laid down in Chapter XV, Cr.P.C. and hence, the impugned order being illegal was liable to be recalled, but the Court below without sufficient reason declined to recall the aforesaid summoning order and application dated 6.12.2003 moved by the accused for this purpose has been rejected vide impugned order dated 17.5.2004 and hence both the impugned orders should be set-aside and the case be sent back to the lower Court concerned for passing fresh order after following the procedure laid down in Chapter XV, Cr.P.C. The contention of the learned counsel for the revisionists was that the Magistrate concerned was under obligation to treat the protest petition of the complainant against final report as complaint and to follow the procedure laid down in Chapter XV, Cr.P.C. before passing the impugned summoning order.

6. The learned AGA on the other hand, submitted that both the Courts below did not commit any illegality in passing the impugned orders, as it is not obligatory for the magistrate to treat the protest petition against final report as complaint in all cases and if the material in the case diary is sufficient to summon the accused to face the trial, then there is no legal bar for the magistrate to pass the summoning order after rejecting the final report and in such case, the magistrate is not re