V. P. MATHUR, J, J. ( 1 ) THIS revision was taken up for disposal after the revision of the list on 25. 1. 1988. ( 2 ) MR. A. D. Gin learned counsel for the applicant was heard. The learned counsel for the State was also heard. No one appeared for the complainant first informant Uma Shanker Singh alias Buchani Singh. This judgment was dictated in open Court, but it could not be signed. Meanwhile an application was moved on behalf of Uma Shankar Singh alias Buchani Singh to the effect that his counsel may be heard as he was unable to attend the court on that particular date. Request was allowed. The judgment that was dictated, was neither transcribed nor signed by this Court hence the revision was taken up for hearing afresh on 18. 2. 1988. ( 3 ) THE learned counsel on both sides were heard. ( 4 ) A brief point is involved. It appears that against ten persons, a first information report was lodged. The police investigated the case. There was change of Investigating Officers one after the other and it fell to the lot of the third Investigating Officer to ultimately submit a charge-sheet against seven persons only. Simultaneously he submitted the police report, which in common parlance is known as final report against three present applicants Panchan Singh, Harbansh Singh and Gulab Singh. The learned Magistrate before whom the matter went up, took cognizance against the seven persons; against whom charge-sheet was submitted and also accepted the final report against the remaining three persons who are the present revisionists. Then a protest petition was moved, after the magistrate had already passed the order and the learned Magistrate took the view that since he had already taken cognizance of the - offence once he could not take cognizance again against the remaining three persons under see 190 (1) (b) of the Code of Criminal Procedure and the only way open for the first informant was to adduce evidence at the stage of section 319 of the Cr. P. c. when an order to summon the three applicants revisionists may also he made, if it is found proper on the basis of the evidence that is adduced. The matter went up before Mr. P. c. when an order to summon the three applicants revisionists may also he made, if it is found proper on the basis of the evidence that is adduced. The matter went up before Mr. S. K. Srivastava, the then Sessions Judge of Ghazipur through Criminal Revision No. 15 of 1987 and the learned Judge was of the view that the Magistrate ought to have taken cognizance under section 190 (1) (b) of the Code of Criminal Procedure against Panchan Singh. Harbansh Singh and Gulab Singh also on the basis of the police papers that is the Case Diary, in as much as there was prima facie evidence in the statements under section 161 Cr. P. C. He, therefore, directed the Magistrate to take cognizance and proceed with the matter and also directed the parties to appear before him on 24 2. 1987. He passed this order on 62. 1987. ( 5 ) THE present revision has been filed against that revisional order of the Sessions Judge dated 6. 21987. The legal position is quite clear. Once a final report is submitted against some body and simultaneously a charge sheet is submitted against the others, if the Magistrate takes cognizance on the basis of the charge sheet and accepts the final report, a protest petition will lie and if such protest petition has all the ingredients mentioned in section -2 (d) of the Code of Criminal Procedure it can be treated as a complaint and proceedings of complaint case may go on involving sections 200 and 202 Cr. P. C. The Magistrate can then pass an order according to law. ( 6 ) IT has also been laid down by the Supreme Court in the case of Bhagwat Singh v. Commissioner of Police1, that when on consideration of the report made by the Officer-in-charge of the police station under sub - section (2) (1) of Sec. 173 the Magistrate is riot inclined to take cognizance of the offence and issue process in respect of some of the accused, the first informant must be given an opportunity of being heard so that he can make his submission to pursuade the Magistrate to take cognizance of the offence and issue process. The Supreme Court observed we are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2) (1) or Section 173, decides not to take cognizance of the offence and to drop the proceedings of takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, he must give notice to the informant and provided him an opportunity to be beard at the time of consideration of the report. The Supreme Court also did not accept the plea that such procedure might result in unnecessary delay on account of the difficulty of effecting service, and held that it was not a valid objection. ( 7 ) IN View of this law when the Magistrate was dropping proceedings against the three revisionists he should have given a notice to the first-informant, so that he could have come and shown to the Magistrate either through a written petition which can be treated as a complaint or through oral submission that even on the strength of the case diary a prima facie case was made out against these persons also and they should also have been summoned. ( 8 ) THE difficulty in the present case is however that the proceedings have gone such ahead and it is now conceded that the case has been committed to the Sessions where the trial is to start. It will not be proper or justified under those circumstances to reverse the entire process and start at the Magistrates level. After all the order that had been passed by the learned Magistrate has not prejudiced the first informant at all because it is still open to him to adduce evidence during the course of the trial to show that there was a case even against the present revisionists and in that even the learned Sessions Judge would be perfectly justified in resorting to action under sec. 319 of the Code of Criminal Procedure and summoning such of these revisionists against whom prima facie case was made out. Under these circumstances, the order passed by the learned Sessions Judge should Not be allowed to stand and it is set aside. It wjll be open to the first informant to have his protest petition already filed before the learned. Under these circumstances, the order passed by the learned Sessions Judge should Not be allowed to stand and it is set aside. It wjll be open to the first informant to have his protest petition already filed before the learned. Magistrate considered on merits and in case the learned Magistrate finds it to be in accordance with the provisions of 5. 2 (d) of the Code of Criminal Procedure, he may proceed with its determillation and pass suitable orders in accordance with law. The other course open for the first informant would be not to press his protest petition at this stage and to adduce evidence during the course of the trial before the Sessions Judge and obtain an order under section 319 of the Code of Criminal Procedure on the basis of the evidence that he adduced there. ( 9 ) WITH these observations, the revision shall thus stand decided. Order accordingly .