Judgment G.L. Gupta, J.-Through this Miscellaneous petition, the petitioners seek quashment of the proceedings of case No. 142/90 pending against them in the Court of Addl. Chief Judicial Magistrate, Sri Ganganagar. This is the second time that the petitioners have come to this Court to challenge the order of taking cognizance. .2. Therelevant facts are these: Deceased Roop Ram was the brother of the first informant Han Padam (non-petitioner No. 2). He was shot dead in broad day light at 3 or 3.15 PM on 6-6-86 in Dhanmandi. Han Padam lodged the first information report at 5.45 PM, which reached the ‘Ilaka’ Magistrate on the same day, in which it was stated that Hazari, Sada Sukh, Hemraj and Veeru (petitioners) had come in a car, driven by Kishan Sb. Dula Ram (petitioner) and they had firearm, with them. Sada Sukh, Hemraj and Veeru had fired shots at Roopram causing his death. It was further stated in the report that the occurrence was witnessed by the first informant himself Sahib Ram and Hans Raj and other persons of the Mandi. On this report, a case under Sections 148, 302, 149, IPC and 27 of the Arms Act was registered at Police Station Ghoomarwali. On investigation, the police came to the conclusion that the persons named in the FIR had not committed the offence and the real culprits were Krishanlal Sb. Bahadar Ram. Om Prakash and Mahipal. The police, therefore, filed challan against them showing Mahipal as absconding. The learned Magistrate took cognizance of the offences against accused persons challaned by the police on 17-11-86. First informant Han Padam filed protest petition on 15-12-86 pointing out that the police had left out the real culprits in the case. By the order dated 10-4-87, the learned Magistrate rejected the protest petition and committed the case filed by the police, to the Court of Sessions. Han Padam challenged that order in this Court by filing revision petition No. 139/87 which was decided on 6-11-87. This Court set aside the order of the Magistrate dated 10-4-87, quashed the commitment of the accused and directed the Magistrate to afford Han Padam an opportunity of being heard in the light of the decision of the Supreme Court in the case of Bhagwan Singh v. State and pass appropriate .order in accordance with law. Thereupon Han Padam filed private complaint on 7-12-87 against the petitioners. Thereupon Han Padam filed private complaint on 7-12-87 against the petitioners. The learned Magistrate proceeded to hold enquiry and examined complainant Han Padam and his witnesses Hans Raj, Sanwat Ram and Dr. Ram Pratap, Han Padam closed his evidence on 6-7-8 8. Thereupon vide order dated 3-8-90 passed in Complaint Case No. 12/90 the learned Magistrate ordered amalgamation of the complaint with the Criminal Case No. 142/89 (case challaned by the police) pending in his Court. By the order dated 4-9-90 the learned Magistrate issued process against the petitioners. They were summoned by warrants of arrest. That order was challenged by the petitioners by filing Miscellaneous petition in this Court which was disposed of giving directions that the objections raised in the Miscellaneous petition against the cognizance may be taken before the Magistrate. The petitioners there-upon filed an application before the Magistrate on 14-1-1991 for recalling the order of taking cognizance. By the order dated 23-1-1991, the learned Magistrate rejected that application observing that he was not competent to review the order of taking cognizance. 3. The peculiar facts of the case are that in the FIR Han Padam had stated that 5 petitioners were the assailants, who had caused the death of Roopa Ram but the police instead of filing charge-sheet against those persons challaned two different persons and further stating that one assailant Mahipal was absconding. The first informant insists that the culprits were none else than the petitioners who were named in the FIR and therefore he has filed a private complaint. 4. The serious contention of Mr. Singhvi was that the procedure adopted by the learned Magistrate in amalgamating the two cases; one registered on the police report and the other registered on the private complaint, was not warranted by law. According to him, the accused in both the cases were different and therefore, cognizance on the private complaint could not be taken on the material of the police case. He submitted that the order should be quashed and the learned Magistrate be directed to pass order on the private complaint on the basis of the evidence produced in that case only. 5. The learned Public Prosecutor and Mr. He submitted that the order should be quashed and the learned Magistrate be directed to pass order on the private complaint on the basis of the evidence produced in that case only. 5. The learned Public Prosecutor and Mr. Singh, learned Counsel for the complainant, on the other hand, contended that the case should not be sent back to the Magistrate for deciding it afresh, rather this Court should pass suitable order, so that the trial of the murder case may proceed. .6. I have given the matter my thoughtful consideration. The following points arise for determination: .(i) Whether the order amalgamating the two cases; one registered on the police report and the other registered on the private complaint, is illegal. .(ii) Whether the learned Magistrate has erred in relying on the challan papers while taking cognizance on the private complaint against the petitioners, if so whether the order should be set aside and the case should be remanded for deciding the matter afresh. 7. The provision for amalgamating two cases is contained in Section 210, Cr.P.C, which is reproduced hereunder: 210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence- .(1) 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. .(2) 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. .(3) 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. A reading of Sub-section (1) makes it clear that it is only when private complaint is filed before the investigation is completed by the police that provisions of Section 210, CrPC are attracted. Sub-section (1) provides that if it is made to appear to the Magistrate during the course of the inquiry or trial in a private complaint case that investigation is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, he shall stay the proceedings and call for a report on the matter from the police officer conducting the investigation. In the instant case, the police had already filed challan in the case and there after the private complaint was filed. Therefore, the provisions of Sub-section (1) did not apply to the proceedings. Sub-section (2) provides that if the police also files challan against any person who is an accused in the complaint case pending before him the Magistrate shall try the complaint case as well as the police report together. Thus Sub-section (2) envisages the amalgamation of the two cases, but the necessary condition for such amalgamation is that accused in both the cases should be common. In the instant case, the accused in both the cases are different. The persons who had been challaned by the police are not the accused in the private complaint. That being so, there could not be amalgamation of the two cases under sub section (2). Sub-section (3) applies where the Magistrate had stayed the proceedings under Sub-section (1). In the instant case, as already stated the challan had already been filed and therefore, there was no question of stay of the proceedings of the private complaint. The net result of the above discussion is that the provisions of Section 210, CrPC were not attracted to the cases pending before the Magistrate. There could not be amalgamation of the two cases; one registered on the private complaint and the other registered on the police report, though they were in respect of the same occurrence. 8. The net result of the above discussion is that the provisions of Section 210, CrPC were not attracted to the cases pending before the Magistrate. There could not be amalgamation of the two cases; one registered on the private complaint and the other registered on the police report, though they were in respect of the same occurrence. 8. Cognizanceof an offence is taken by a Magistrate Under Section 190(1)(a), CrPC upon receiving a complaint of facts which constitutes such offence. After the Magistrate takes cognizance he embarks upon enquiry under Chapter 15, CrPC and examines the complainant and his witnesses. Under Section 203, CrPC if after considering the statements on oath of the complainant and of the witnesses and the result of the enquiry or investigation Under Section 202, CrPC the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. It is obvious that while taking decision on the complaint the Magistrate is required to consider only the complaint, the statements of the complainant and his witnesses recorded under Chapter 15, CrPC and the result of the enquiry or investigation if any. In the instant case, the learned Magistrate had not sent the complaint for enquiry or investigation to some other person. He, therefore, could consider the statements of the complainant and his witnesses besides the complaint to decide if process was to be issued or complaint was to be dismissed. 9. The learned Magistrate in the impugned order has observed that he has considered the investigation papers, the statements of the witnesses recorded Under Sections 161, CrPC and 164, CrPC and the evidence recorded by him and he was satisfied that the offence was committed by the petitioners. It is obvious that the learned Magistrate has considered the papers which were available on the police report which he should not have done. While deciding as to whether process was to be issued against the petitioners or not, he should have considered only the complaint, the statements of the complainant and his witnesses and the material placed on the complaint file. 10. Now the important question to be considered is whether for the reason that the Magistrate while passing the impugned order has considered the papers of the police report, the order taking cognizance should be set aside and the case be remanded. 11. 10. Now the important question to be considered is whether for the reason that the Magistrate while passing the impugned order has considered the papers of the police report, the order taking cognizance should be set aside and the case be remanded. 11. The case is still at the committal stage. The impugned order had been challenged by the petitioners in 1991 but because of the order of this Court, the matter was sent back to the Magistrate and about 9 years have elapsed. Remanding of the case by this Court again would not only cause delay in the trial of the case but it would also tend to defeat the ends ofjustice instead of securing those ends. It may have the effect of lessening the faith of the people in the judicial system as people may think that the accused with enough means is able to keep the law at bay. I have, therefore, chosen to go through the material on record myself and decide if the order of the learned Magistrate taking cognizance is sustainable without the material available on the police challan case. 12. In the complaint, it was averred that in the occurrence which took place on 6-6-86 Roopa Ram was murdered at about 3 or 3.15 PM and the assailants had come in a car. It was further stated that Kishan Lal was driving the car in which Sada Sukh, Hemraj, Hazari and Veeru were sitting and shots were fired by Sada Sukh, Hemraj and Veeru causing the death of Roopa Ram at the spot. It was also stated that the occurrence was witnessed by the complainant himself besides Sahib Ram and Hans Raj. Han Padam in his statement recorded Under Section 200, CrPC has fully corroborated the facts of the complaint. He has stated that he had lodged the First Information Report ExhibitP-1 at the Police Station. Hans Raj PW. 2 and Sahib Ram, PW. in their statements recorded Under Section 202, CrPC have also fully corroborated the testimony of Han Padam. They have deposed that Sada Sukh fired a shot and as Rupa Ram tried to run Veeru and Hemraj chased him and fired shots from their pistols. Dr. Ram Pratap, PW. 4 had performed autopsy on the body of Roopa Ram. He has deposed that Roopa Ram had died of the firearm injuries which were ante-mortem in nature. .13. They have deposed that Sada Sukh fired a shot and as Rupa Ram tried to run Veeru and Hemraj chased him and fired shots from their pistols. Dr. Ram Pratap, PW. 4 had performed autopsy on the body of Roopa Ram. He has deposed that Roopa Ram had died of the firearm injuries which were ante-mortem in nature. .13. Thereis thus material on record to hold that the five petitioners had gone in a car having fire arms in their hands and Roopa Ram was shot dead by three of them viz. Sada Sukh, Hem Raj and Veeru. The facts indicate that all the five accused-petitioners had formed unlawful assembly to kill Roopa Ram. There was thus enough material (without the material on police challan case) on record before the Magistrate to issue process against the petitioners for the offence under Sections 148, 302 and 149, IPC and 27 of the Indian Arms Act. For the reasons stated above, the order issuing process against the petitioners in the complaint case is not liable to be quashed on the ground that the Magistrate had taken into consideration the material, which he should not .have considered. Even ignoring all the papers filed with the police report, there is enough material on record on which process could be issued against the petitioners. .14. Consequently, the petition is disposed of as under: .(i) The order dated 3-8-90, passed by the learned Magistrate in the private complaint case amalgamating both the cases; one registered on the police report and the other on private complaint, is set aside. .(ii) The order dated 23-1-91, whereby the learned Magistrate issued process against the petitioners under Sections 148,149, 302 IPC and 27 of the Arms Act, is upheld. (iii) It is directed that the learned Magistrate shall consider the commitment of both the cases separately but the orders shall be passed on the same day. (iv) It is further directed that in the event of committing both the cases, the learned Sessions Judge shall try them separately in accordance with law, but they shall be decided on the same day.