Siddharth, J.

Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application has been filed under Section 482 Cr.P.C. praying for quashing of the order dated 17.12.2018 passed by Additional Chief Judicial Magistrate, Deoband, District- Saharanpur in Criminal Case No. 4106 of 2018 (State vs. Harshit and others) under Sections- 307, 506, 326, 147, 148, 149, 452 I.P.C., P.S.- Deoband, District- Saharanpur.

3. The brief facts of the case are that the opposite party no. 2, Ram Kumar, lodged FIR dated 11.09.2018 and the police investigated the case and recorded the statement of opposite party no. 2, informant, under Section 161 Cr.P.C., statement of Smt. Rajkumari and injured, Anuj Kumar, also under Section 161 Cr.P.C. Site plan was prepared and injured, Anuj Kumar, was medically examined at C.H.C., Deoband on 10.09.2018 and he was referred to higher medical centre. However, he was admitted in a private hospital and a supplementary report was prepared by private hospital. The investigating officer on 24.09.2018 recorded the statement of independent witnesses, namely, Mahipal Singh, Amit, Pappu, Lokendra, Sachin, Somendra, Ram Kishan and Harpal under Section 161 Cr.P.C. who stated that the applicants have not committed any offence and only accused, Harshit, caused injury to the injured. The investigating officer submitted charge sheet only against Harshit under Sections 307, 506 I.P.C. and exonerated the applicants from charges. On the submission of the police report before the court a protest petition, annexing therewith his own affidavit as well as affidavits of witnesses, Vineet Kumar, Harendra and Hemraj, was filed by the first informant, opposite party no. 2 before the Magistrate. On the basis of the aforesaid protest petition the Magistrate has passed the summoning order dated 17.12.2018 against 12 persons, 11 out of them are before this court challenging the same.

4. The counsel for the applicants has submitted (i) that the learned magistrate has committed gross illegality in summoning the applicants on the basis of the protest petition and affidavit submitted by the opposite party No. 2 alongwith the protest petition exercising the powers under Section 190(1)(b) Cr.P.C.

(ii) That, if the magistrate received final report the following four courses were open to him and he was required to adopt anyone of them as the facts and circumstances of the case my require:

(a) He may have agreed with the conclusions arrived at by the police, accepted the report and dropped the proceedings. But before so doing, he should have an opportunity of hearing to the complainant; or

(b) He may have taken cognizance under Section 190(1)(b) Cr.P.C. and issued process straightway to the accuseds without being bound by the conclusions of the investigating agency, had he been satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(c) He may have without issuing process or dropping the proceedings decided to take cognizance under Section 190(1)(a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decided whether complaint should be dismissed or process should be issued.

(iii) That, where the magistrate decides to take cognizance of the case under Section 190(1)(b) of the code ignoring the conclusions arrived at by the investigating agency and applying his mind independent to the facts emerging from the investigation record, in such a situation the magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not