Hon’ble Mrs. Jayashree Tiwari, J.—Heard learned counsel for the revisionists and learned opposite party as well as learned AGA.

2. The present revision has been filed by the applicants on the ground challenging the order of the Magistrate whereby summoning the accused persons.

3. In short, the contention of learned counsel for the applicants is that in the body of the complaint, it is explicitly mentioned that a case concerning the similar incident was lodged in the Police Station and the investigation was going on.

4. Learned Magistrate have not inquired from the Police Station about the progress of the aforesaid case and have straight-way passed the order summoning the accused persons.

5. The contention of learned counsel for the applicants is that if during the course of inquiry or trial it come to the notice of the Magistrate that a case relating to the similar incident is pending before the Police, it is mandatory on the part of the Magistrate to have called a report from the Police Station as mentioned under Section 210 Cr. P.C., it lays down as follows :

“Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.—

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry of trial, which was stayed by him, in accordance with the provisions of this Code.”

6. A bare perusal of the order shows that neither any report from the Police Station was summoned by the Magistrate regarding pendency of any same offence under investigation nor any report was ever received nor Magistrate has made up his mind on any such report according to the provision of Section 210 (2) and (3) and straight way without making any reference and observation in this regard directed to summon the accused persons.

7. Learned counsel for the opposite party referred a statement under Section 200 and 202 Cr.P.C. recorded by the C.O of the concerned City Mathura wherein his statement under Section 200 and 202 Cr.P.C., he has narrated that the case was investigated by him and after investigation due to non availability of sufficient evidence report under Section 169 Cr.P.C. was submitted. After wards the investigation was transferred to some other Police Station.

8. The contention of opposite party is that this statement of the C.O. be treated as police report but apparently, the statement under Sections 200 and 202 Cr.P.C given by C.O. is evidence in complaint case at preliminary stage instead it cannot be treated to be report regarding pendency for some criminal case regarding the same incident which appears to have come in the notice of the learned Magistrate.

9. Hence it was expedient and proper on the part of the Magistrate to have called for a specific report in this regard as provided under Section 210 (2) and (3) Cr.P.C.

10. The C.O. has submitted in his statement that the case was transferred specifically after submitting the report under Section 169 Cr.P.C. to some other zone which ref