JUDGMENT R.C. Deepak, J.
1. Heard Sri B.RJ. Pandey, learned counsel for the petitioner, learned AGA for the State and perused the record.
2. The present criminal misc. writ petition has come up against the orders dated 7.4.2004 and 17.8.2004 passed by the courts below on the protest petition filed against the submission of final report, disallowing the prayer for directing the case to proceed as State case / police challani.
3. The facts in brief of the case are that the petitioner has lodged an F.I.R. Dated 18.7.2004 against the respondent concerned. The police investigated the matter and finally submitted the final report. No notice was issued by the Court to the complainant before the final report was rejected in her case. In the meantime, since the police was dillying the investigation, her husband in the belief that the police while doing nothing in the matter, filed the complaint after the submission of the final report and application under Section 210 Cr.P.C. for consolidation was moved by her husband. The complainant/husband in the complaint, when the application was rejected, went in revision against this order, but the same was also rejected by the learned Sessions Judge. Again an application was made by the petitioner for taking cognizance, as the final report was already rejected.
4. The law enjoins a legal obligation upon the judicial magistrate, who rejects the final report, to adopt any of the two courses :-
(i) to summon the accused on perusal of the case diary or;
(ii)to send the case for further investigation after hearing the complainant.
5. Merely filing a complaint by her husband is not impediment for the adherence of any of the above two courses. Since Section 210 Cr.P.C. does make it incumbent upon the court to consolidate the complaint with the police case. Having rejected the final report, the court was under obligation in law to merge the complaint with the case, merely because the accused were summoned in complaint case, the court is not at liberty to ignore the provisions of Section 210 Cr.P.C. specially when it has rejected the final report. As a matter of fact, it has no other option, but to consolidate the two cases - the police challani case and the complaint case. Since both the cases are based upon the same facts to try them as State case, the impugned order dated 7.4,2004 is, therefore, in-sustainable in law. The courts below have fallen in error in rejecting her application.
6. In view of the above discussions, the writ petition is bound to be allowed. It is accordingly allowed. The impugned order dated 7.4.2004 and and 17.8.2005 are hereby quashed. I do not find any necessity to issue any notice to the accused respondent since it is not the stage wherein they have any say in law. They at best can have or right after being summoned in the case by the magistrate.