Hon’ble Amar Singh Chauhan, J.—Heard Sri Anil Kumar Sharma, learned counsel for the applicants, Sri Ram Ashish Pandey, learned counsel for opposite party No. 2 and learned AGA for the State.

2. I have perused the material on record.

3. The applicant Dinesh Kumar and four others through the present application moved under Section 482 Cr.P.C. have invoked the inherent jurisdiction of this Court with a prayer to quash the summoning order dated 9.7.2007 as well as proceeding of the Complaint Case No. 84 of 2006 (Vishram Singh v. Dinesh Kumar and others) under Sections 395, 397, 307 and 308 IPC, Police Station Bakewar, District Etawah and further prayed to stay the aforesaid proceeding against the applicants.

4. Learned counsel for the applicants submitted that an application under Section 156(3) Cr.P.C. was moved by opposite party No. 2 Vishram Singh with the allegation that on 3.3.2005 at 21.00 p.m. when the informant was returning from Lucknow by his motor cycle when he reached near his place the accused Dinesh Kumar, Rakesh, Sarvesh, Mahendra and Naresh who were standing there, assaulted and caused injury by lathi on his head and snatched his rifle. The said application was allowed and concerned police was directed to investigate the matter. After concluding the investigation, the Investigating Officer submitted the final report against which the opposite party No. 2 Vishram Singh filed the protest petition which was rejected and final report was accepted. It is further submitted that when the final report was accepted then except to challenge the order in revision fresh complaint cannot be filed because these are the unending proceedings.

5. Per contra learned counsel for the opposite party No. 2 contends that the Magistrate without taking into account the averment made in the protest petition accepted the final report. Aggrieved by the aforesaid, complaint was preferred which, by no means is illegal, as there is no bar in filing complaint. It is further submitted that neither the Magistrate nor Investigating Officer did consider the injury report in which there are five number of injuries on the body of the complainant and in the X-ray report depressed fracture in the frontal bone (left) was found.

6. In this case, the main point of consideration is that whether after rejecting the protest petition and accepting the final report fresh complaint can be entertained by the Magistrate. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power under Section 482 Cr.P.C. may be exercised to prevent the abuse of process or miscarriage of justice.

7. A Magistrate on receipt of a complaint, order an investigation under Section 156(3), and receives a police report under Section 173(1, may thereafter do one of the following:

(1) He may decide to drop the proceeding if in his opinion no sufficient ground exists for proceeding.

(2) He may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process.

(3) He may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceeding but examine upon oath the complainant and his witnesses under Section 200 Cr.P.C.

8. It would be useful to make it clear at this stage that the Magistrate if decides to take cognizance of the case under 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency from the record of the investigation, in such an eventuality, he is not bound to follow procedure laid down in Section 200 and 202 Cr.P.C. and thus proviso to Section 202(2) will have no application. However, for the purpose of forming such an independent opinion the Magistrate can act only upon statement of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use any material other t