Judgment Amaresh Kunwar Singh, J.-Heard the learned counsel for the petitioner, the learned counsel for non-petitioners Nos. 2 to 6 and the learned Public Prosecutor appearing for the non-Petitioner No. 1. Non-Petitioner No. 7 does-not appear to have been served, because as per office report, his summon has not been received after service. The learned counsel for the petitioner as well as the learned Public Presecutor submits that it is not necessary to serve notice on non-Petitioner No. 7., because the process has not been issued against him by the learned Judicial Magistrate under Section 204 CrPC and it is well established that unless process has issued under Section 204, CrPC against any person, he has no right to be represented before a Court. The proviso given in Section 398, CrPC applies to those persons, who have been discharged of an offence by the Lower Court. This proviso has no application to the cases of those persons, who were neither arrested by the police nor against whom any process were issued by the Court under Section 204, CrPC 2. For the disposal of this petition, it is not necessary to serve notice on the non-Petitioner No. 7. .3. The facts of the case may be briefly summarised as below:-Smt. Santosh was married wife of Madan Lal S/o Nopa Ram, by caste Nai, resident of Chak 14 KSP, Police Station Hanuinangarh. On 14th February, 95 when Smt. Santosh was preparing tea at her Dhani, two ladies, namely, Smt. Jaikori and Smt. Darshna went to her Dhani, Smt. Santosh offered them tea. At that time Smt. Jaikori gave a tablet to Smt. Santosh and asked her to take the same for the purpose of getting relief from headache. Smt. Santosh took the bablet with tea and thereafter she went to the field for the purpose of bringing fodder for the animals. Smt. Jaikori and Smt. Darshana accompanied her. When Smt. Santosh did not return even after a lapse of sufficient time her husband Madanlal send his sister Prema to the field to find out what Smt. Santosh was doing there. Prema went to the field and found that Smt. Santosh was not present. Her sickle and a sheet of cloth were lying there. There were prints of tyres of a jeep and foot prints of some .persons. Prema returned to the house and told her brother about the above facts. Prema went to the field and found that Smt. Santosh was not present. Her sickle and a sheet of cloth were lying there. There were prints of tyres of a jeep and foot prints of some .persons. Prema returned to the house and told her brother about the above facts. Madan Lal then conducted a search for Smt. Santosh, but failed to trace her out. On the second day, Madan Lal came to know that Smt. Santosh had been abducted by Krishna, Bhoop, Lalchand, Jaikori and Darshana. A First Information Report was also lodged by Madan Lal at the Police Station on 16th February, 95 at 9.30 a.m. On the next day, Madan Lal received the information that his wife Smt. Santosh was being taken to the Court premises by the accused persons. On receiving this information, Madan Lal and Sahab Ram, both went to the Police Station and gave information and then he went to the Court premises with the police constables. There Smt. Santosh and one Krishna were taken in custody by the police officers. 4. After her recovery Smt. Santosh narrated that when she went to the field with Smt. Jaikori and Smt. Darshana for the purpose of bringing fodders, she lost her senses and when she regained herself , she found herself confined in a room. She further added that in the house where she was confined, there were Krishna, Bhoop and two other persons. She was threatened by showing a gun and was further threatened with loss of life in the event she made an attempt to run away. Smt. Santosh further added that on account of fear she did not utter any word and throughout the night she was raped by Krishna, Bhoop, Bhajanlal and two other persons and that she was confined in that house for two days and the above named persons had raped her against her will and without her consent and on the third day when her condition became serious, the accused persons took her to the Court premises, obtained her signature on the blank paper and at (hat time the police officers reached the spot and took her as well as Krishna in custody and the remaining persons ran away. 5. 5. Madan Lal not only lodged the First Information Report at the Police Station on 16th February 95, he filed a complaint in the Court of learned Additional Civil Judge (Jr. Division) and Judicial Magistrate, 1st Class, Hanumangarh on 10th March, 95. On the basis of the First Information Report given by Madan Lal, the police registered a case, conducted investigation and submitted a charge-sheet under Sub-section (2) of Section 173, CrPC against Krishna. The learned Magistrate took cognizance on the basis of the charge-sheet submitted by the police and committed the case to the Court of Sessions. The complaint filed on 10th March, 95 was put up before the Presiding Officer on 28th March, 95 with the office report. On that day the statement of the complainant were recorded under Section 200, CrPC On 6th April, 95 Smt. Santosh (C.W. 2).Sahab Ram (C.W. 3), Banwari Lal (C.W. 4) and Ramnivas (C.W. 5) were examined. The complainant closed his evidence on that day. In place of passing any order under Section 203 or 204, CrPC the learned Judicial Magistrate directed that the complaint be annexed with the challan filed by the police against Shri Krishna Lal. A revision petition against the order dated 6th April, 95 was filed by Madan Lal. The revision petition was disposed of by the learned Sessions Judge, Hanumangarh vide order dated 15th May, 95. The learned Sessions Judge held that it was necessary for the learned Judicial Magistrate to have passed an order under Section 203 or 204 of the Criminal Procedure Code. Consequently, the revision petition was allowed and the learned Judicial Magistrate was directed to pass orders on the complaint filed by Madan Lal according to law. It appears that the case instituted on the basis of the charge-sheet filed by the police had been committed to the Court of Sessions on 6-4-95. 6. When the matter was considered by the learned Judicial Magistrate on 4th January, 97, the learned Judicial Magistrate declined to pass any orders on the ground that the matter was within the exclusive jurisdiction of the learned Sessions Judge and that he (Judicial Magistrate) had no jurisdiction to take cognizance of the offences for want of jurisdiction. Asa result of the order dated 4th January, 97 the directions given by the learned Sessions Judge in the revision petition filed by Madan Lal could not be carried out. 7. Asa result of the order dated 4th January, 97 the directions given by the learned Sessions Judge in the revision petition filed by Madan Lal could not be carried out. 7. Shri Krishna Lal, who was committed to the Court of Sessions was tried by the learned Sessions Judge on a charge under Section 366, IPC Krishna Lal pleaded not guilty to the charge and consequently, a trial was conducted and during the trial Smt. Santosh w/o Madan Lal was examined as prosecution witness No. PW. 4. After the recording of the statements of prosecution witnesses, an application was moved by Madan Lal under Section 319, CrPC praying that other accused persons be proceeded against, because prima facie case was made out against them. The learned Sessions Judge rejected the application of Madan Lal by his order dated 19th March, 97 on the ground that the application under Section 319, CrPC should be filed at the earliest opportunity and that if it is delayed, then it will be inferred that it has been filed with a view to harass the accused persons. He, therefore, declined to issue process against Bhoop Lal, Jaikori, Darshna and Bhajan Lal for the offences punishable under Sections 366 and 376 read with 34, IPC 8. The Session Case No. 34/96 State vs. Krishna Lal, in which Krishna Lal was tried on a charge under Section 366, IPC ended with the acquittal of Krishna. It is important to note that Krishna was not charged under Section 376, IPC A perusal of the statement of Smt. Santosh (C.W. 2) shows that she had categorically stated that she was raped by 5-6 persons, who had abducted her. .9. Thelearned counsel for the petitioner has submitted that on the complaint filed by Madan Lal, it was necessary for the learned Judicial Magistrate to have passed some order either under Section 203 or under .Section 204, CrPC and in any case the learned Judicial Magistrate ought to have complied with the directions given by the learned Sessions Judge notwithstanding that the case instituted on the basis of the charge-sheet under Section 173(2), CrPC had been committed on 6th April, 95. Because the complaint instituted on the basis of the complaint filed by Madan Lal was separate from the case instituted on the basis of the charge-sheet submitted by the police under Section 173, CrPC He has therefore prayed that the impugned order passed by the learned Judicial Magistrate be set aside and the learned Judicial Magistrate be directed to pass suitable orders on the complaint filed by Madan Lal. 10. The learned counsel for the non-petitioners Nos. 2 to 6 has submitted that in this case no useful purpose would be served by allowing the petition, because the trial against Krishan Lal has been completed and Krishan Lal has been acquitted of the charge under Section 366, IPC and the application filed by the complainant Madan Lal under Section 319, CrPC was dismissed by the learned Sessions Judge and since that application was dismissed by the learned Sessions Judge, the learned Magistrate cannot be said to have any jurisdiction to issue any process against the accused other than Krishan Lal on the basis of the complaint filed by Madan Lal. 11. I havecarefully considered the rival arguments. It is not disputed that First Information Report was lodged on 16th February, 95 and the private complaint was filed by Madan Lal on 10th March, 95. It is not disputed that on 10th March, 95 i.e. the date on which the-private complaint was filed, the police investigation on the basis of the First Information Report dated 16th February, 95 was in progress. Therefore, the provisions of Section 210, CrPC were applicable. Section 210, CrPC provides that 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. 12. 12. Sub-section (2) of Section 210 provides that 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. 10.13. Sub-section (3) of Section 210 provides 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 or trial, which was stayed by him in accordance with the provisions of this Code. 114. Aperusal of Sub-section (2) and Sub-section (3) of Section 210, CrPC shows that if a police investigation is in progress, the Magistrate has to stay the proceedings instituted otherwise than on police report and call for the report of the investigation from the police and on submission of the report of investigation, if the Magistrate takes cognizance of an offence against the accused person, then the complaint case and the case instituted on the police report shall be tried together provided cognizance has been taken of the same offence and same accused have been proceeded against in both of them. In view of Sub-section (3) of Section 210 it is very clear that if on the basis of the police report the Magistrate does not take cognizance of the offence disclosed by the complaint or on the basis of police report, the Magistrate does not proceed against any person, but on the basis of complaint, such person can be proceeded against, the complaint cannot be amalgamated with the police report. 115. In the instant case, the learned Magistrate took cognizance of the offence under Section 366, CrPC on the basis of the police report submitted under Section 173, CrPC He does not appear to have taken cognizance of the offence punishable under Section 376, IPC on the basis of the police report. It is also, evident from the record that on the basis of the police report submitted under Section 173 only one person namely Krishan Lal was proceeded against. No other person was proceeded against in the case instituted on police report. It is also, evident from the record that on the basis of the police report submitted under Section 173 only one person namely Krishan Lal was proceeded against. No other person was proceeded against in the case instituted on police report. In view of those facts and the provisions of Sub-section (3) of Section 210, CrPC only a part of the complaint filed by Madan Lal was liable to be amalgamated with the police report. The whole of the complaint could not be amalgamated with the police report. In other words the complaint filed by Madan Lal so far as it alleged the commission of offence under Section 376, IPC could not be amalgamated with the police report. Similarly, the complaint filed by Madan Lal so far as it alleged the commission of offence by persons other than Kishan Lal, it could not be amalgamated with the police report. As a result of above discussion, it must be held that the complaint filed by Madan Lal continued to remain pending to the extent mentioned above, and therefore, the directions given by the learned Sessions Judge vide order dated 15th May, 95 were binding on the learned Judicial Magistrate and he was bound to pass orders in accordance with law. .16. For the reasons mentioned above, the petition is allowed. The impugned order dated 4th January, 97 passed by the learned Special Judge (Junior Division) and Judicial Magistrate, Hanumangarh is hereby quashed and set aside. The learned Judicial Magistrate is hereby directed to comply with the order dated 15th .May, 95 passed by the learned Sessions Judge, Hanumangarh on the complaint filed by Madan Lal, in accordance with law. 117. The petition is disposed of accordingly.