K. N. OJHA, J. This writ petition under Article 226 of the Constitution of India has been filed for quashing the orders dated 18-7-2000 and 24-9-2003 passed by Chief Judicial Magistrate, Jalaun at Orai, and order dated 15- 10-2003 passed by learned Sessions Judge, Jalaun at Orai, by which revision preferred against order dated 24-9-2003 passed by Chief Judicial Magistrate was dismissed and it was held that the Magistrate has no power to recall or vary the order summoning the accused to face the trial as such the objection of the accused is not maintainable. The petitioners accused had first to appear before the Chief Judicial Magistrate, they will have opportunity to argue on the charges in the Court of Sessions and the case is to be decided in accordance with the provisions of Cr. P. C. The petitioners-accused cannot be allowed to by pass the provisions of bail contemplated in the Criminal Procedure Code. 2. Heard Sri B. N. Singh, learned Counsel for the petitioners and the learned AGA. 3. The fact of the case is that Pramod Kumar, respondent No. 2 lodged FIR against unknown person on 8-8-1995 at 12. 30 p. m. bearing Crime No. 209 of 1995 under Sections 302/201 IPC. After investigation final report was submitted on 18-3-1996 in the Court of Chief Judicial Magistrate, Jalaun who sent notice to the respondent No. 2 complainant. The complainant filed an application on 10-1-1997 before the Chief Judicial Magistrate that the Investigating Officer had not collected the evidence and final report was wrongly submitted in the Court. The Chief Judicial Magistrate recorded statement of the complainant under Section 200 Cr. P. C. and of witnesses under Section 202 Cr. P. C. and thereafter, summoned the accused petitioners to face trial under Section 302/201 IPC. The accused did not appear in the Court and they moved an application through their Counsel to recall the order summoning the accused, but the application was rejected on 24-9-2003 by the Chief Judicial Magistrate following the law laid down in 2002 (1) JIC 459 (All) : 2002 (44) ACC 520, M/s Bhopal Sugar Industries Ltd. v. State of U. P. , in which it has been held by this Court that objection filed by the accused for recall of the summoning order was not maintainable as it was not permissible under law. 4. 4. Aggrieved therefrom instant writ petition has been filed on the ground that when a final report was submitted the Magistrate has to either accept the final report or take cognizance of the offence and proceed with the case and if there is some short coming in the investigation he may direct the investigating officer to further investigate the case and submit report or to make inquiry like the complaint case record statements of the complainant and witnesses under Sections 200 and 202 Cr. P. C. and proceed with the case. 5. It is submitted that merely an application was moved by the complainant that he had to adduce evidence. No protest petition was filed containing the details of occurrence. Therefore, the application moved by the applicant could not be treated to be complaint. Besides it under Section 202 Cr. P. C. when it is Sessions triable case and the Magistrate is proceeding to deal with the case as a complaint case, the statement of prosecution witnesses should be recorded and list of all witnesses should be filed in the Court. On the ground it was submitted that the order summoning the accused-petitioners deserves to be recalled. The learned Counsel for the petitioner has placed reliance on 2002 (2) JIC 563 (Allahabad), Bhagwan Singh and others v. State of U. P. and another, in which it has been held by a learned Single Bench of this Court that the accused can be summoned only after list of witnesses has been filed. Under Section 204 (2) Cr. P. C. protest petition cannot be treated as complaint, if details of commission of the offence is not mentioned. With this observation it was held that the learned trial Judge could have taken cognizance of the application under Section 156 (3) Cr. P. C. and not on protest petition in which details of facts have not been mentioned. Even though the impugned order summoning the accused was quashed but it was made clear that the trial Court was free to pass fresh order after removing these defects. 6. The learned Counsel for the petitioners also relied on 2002 (1) JIC 104 , Pakhandu and others v. State of U. P. and another, in which it has been held by a Division Bench of this Court that Section 190 (1) (b) of Cr. 6. The learned Counsel for the petitioners also relied on 2002 (1) JIC 104 , Pakhandu and others v. State of U. P. and another, in which it has been held by a Division Bench of this Court that Section 190 (1) (b) of Cr. P. C. is applicable when cognizance is taken without taking into account any extraneous material and only on the basis of material collected during the investigation. In such cases the Magistrate is not bound to follow the procedure of complaint case, but if the Magistrate had taken cognizance under Section 190 (1) (a) of the Code and had opted to hold inquiry under Sections 200 and 202 Cr. P. C. after examining the complainant and the witnesses, the procedure applicable is that all the witnesses are to be examined. 7. A perusal of judgment of both the Courts below shows that besides the rulings 2002 (1) JIC 459 (All) : 2002 (44) ACC 520, M/s. Bhopal Sugar Industries Ltd. v. State of U. P. , reliance was placed on a Full Bench decision of this Court in 2000 (1) JIC 399 (All) (FB) : 2000 ACC 342; Ranjeet Singh v. State of U. P. , in which after discussing a large number of rulings of this Court and of Honble the apex Court it was held that the only course open to an accused against whom process has been issued by a competent Court in accordance with provisions of Cr. P. C. is to appear before the said Court subject to the procedure of bail etc. as are contained in the Cr. P. C. for securing his future attendance in the trial or inquiry as the case may be. Thus whn Cr. P. C. contemplates a procedure, the petitioners had to seek remedy according to the procedure of the Code. The petitioners had to appear before the Court of the Magistrate concerned and to participate with the proceedings of the case and to press the plea of discharge at the proper stage of the case and it is not open for the petitioner to avoid compliance of the procedure of the Code and seek remedy in the nature of certiorari quashing the order passed by the learned Chief Judicial Magistrate and the learned Sessions Judge, Jalaun at Orai. 8. 8. A complaint case may proceed when the complainant files a complaint against accused and the accused are summoned to face the trial. Another type of complaint case may proceed against the accused when investigation is done and final report is submitted. The learned Magistrate has perused the case diary and finds it proper that some inquiry is to be made, he records statements under Sections 200 and 202 Cr. P. C. and summons the accused. In the earlier case there is no need of post-mortem examination, the statements of witnesses recorded under Section 161 Cr. P. C. or other papers, but in the later case there is already a case diary in which there is post-mortem examination report and papers prepared during investigation. Therefore, when the Magistrate proceeds with the complaint case on submission of final report and makes inquiry under Sections 200 and 202 Cr. P. C. the proviso clause of Section 202 (2) Cr. P. C. provides that statement of fact witnesses should be recorded, it is not necessary that statements of all such formal witnesses should be recorded. The purpose of making inquiry under Sections 200 and 202 Cr. P. C. is to ascertain as to whether the case should proceed against the accused or not. In such circumstances if the statement of fact witnesses is recorded under Sections 200 and 202 Cr. P. C. in this case and record in available in the case diary relating to the post-mortem examination report and other papers, even if statements of the doctor and investigating officer has not been recorded under Section 202 Cr. P. C. still the proceeding for summoning the accused cannot be held invalid. Even though in instant case merely and application was moved by the complainant that statement of witnesses was not correctly recorded and he wanted to adduce evidence, the contents of this application is to be read in the light of the circumstances when the FIR was lodged by him in respect of murder of his brother and thereafter, investigation was done. So he moved this application considering the fact that he was moving the application in a murder case and he had to prove it. Therefore, the contents of the application moved by him cannot be read in isolation and on this ground the order passed by the learned Chief Judicial Magistrate cannot be set aside. 9. So he moved this application considering the fact that he was moving the application in a murder case and he had to prove it. Therefore, the contents of the application moved by him cannot be read in isolation and on this ground the order passed by the learned Chief Judicial Magistrate cannot be set aside. 9. The learned Counsel for the petitioners has submitted that in a Sessions triable case a list of witnesses is to be prepared, which has not been done in this case. A perusal of Chapter XV of Cr. P. C. shows that when an inquiry is made under Sections 200 and 202 Cr. P. C. thereafter, process is to be issued. When attendance of the accused is procured, copies of documents is supplied under Section 207 Cr. P. C. and thereafter, the case is committed under Section 209 to the Court of Sessions, the list witnesses and documents is prepared. 10. In instant case the accused has not appeared in person before the learned Magistrate, therefore, to say that the order summoning the accused is invalid because the list of witnesses was not prepared is not maintainable. 11. The law laid down in Bhagwan Singhs case is that the procedure of Section 204 (2) Cr. P. C. should be complied with while making inquiry and committing the case to the Court of Sessions, but it does not mean that it is open to the accused not to appear in the Court and challenge the order summoning the accused. The position of law has become final in the Full Bench judgment of this Court in Ranjeet Singhs case. 12. In such circumstances when alternative remedy is available to the petitioners to appear in the Court and to proceed in accordance with the Cr. P. C. the extra-ordinary remedy under Article 226 of the Constitution of India is available to them. 13. In these circumstances the writ petition is dismissed at the admission stage. Petition dismissed. .