R. K. RASTOGI, J. This is an application under section 482 Cr. P. C. for quashing the order dated 18. 9. 2006 passed by the C. J. M. Fatehpur in Case Crime No. 4862 of 2004 (State v. Nihal Singh and others) under sections 304, 394, 504, 506 I. P. C. , P. S. Jafarganj District Fatehpur. 2. The facts relevant for disposal of this application are that on 2. 6. 2004 at about 8. 15 P. M. an F. I. R. was registered at police station Jafarganj District Fatehpur as Case Crime No. 26 of 2004 under sections 21/22 N. D. P. S. Act on the basis of recovery memo prepared by Sri Nihal Singh, then S. O. of Police Station Jafarganj who is applicant No. 1 in the present case. It has been stated therein that on the aforesaid date at 3. 35 P. M. the aforesaid S. O. Nihal Singh along with other members of police party named, Shiv Nath Sonkar, Lalman and Udaiveer Singh, (the applicants No. 2 to 4 in the present case) and Phool Chandra and Kashi Singh proceeded on the Government Jeep from the police station to Garhi Tiraha and there they received information that at village Barwa, Bhaiyadeen and his wife were running business of sale of smack. Then he called S. I. Sri Amrish Kaushik, constable Jagat Lal (applicant No. 6 in the present case) and lady constables Usha Devi and Radha Devi and all of them reached the house of Bhaiyadeen. They saw a lady selling smack to customers. On seeing the police party she tried to go inside the house but with the help of lady con stables, the police arrested her at about 5:45 P. M. and she told her name as Chandrakali wife of Bhaiya Deen. She was given option of being searched before a Gazetted Officer/magistrate but she stated that she was ready for being searched before the police party and then aforesaid both the lady constables took her search and then in a polythene bag 1. 5 grams of open smack powder and four small packets and one big packet containing smack were recovered from her possession. Recovery memo of smack was prepared and the smack was sealed. The information of arrest was given to her daughter-in-law Smt. Veermati wife of Pradeep. 3. 5 grams of open smack powder and four small packets and one big packet containing smack were recovered from her possession. Recovery memo of smack was prepared and the smack was sealed. The information of arrest was given to her daughter-in-law Smt. Veermati wife of Pradeep. 3. On the same date another F. I. R. was also lodged by Sri Nihal Singh then S. O. of police station Jafarganj at 8. 15 P. M. in which it was stated that after the arrest of Smt. Chandiakali when the police party started towards the police station, her sons named Pradeep alias Phoolchand, Dileep alias Chinku and Raju, Bhaiyadeen and their companions Ajeet Singh and Rakesh Kumar Tiwari with an intent to rescue Smt. Chandiakali attacked the police party having Barachhi, axe lathi and danda in their hands and one of them fired at the police party. However no fire arm injury was received by any one of them. The police party arrested Ajeet Singh and Rakesh Kumar Tiwari. . The remaining assailants namely Bhaiya Deen and his sons Pradeep alias Phoolchandra, Dileep alias Chinkoo and Raju ran away from the spot. Upon search of the arrested persons one country made pistol of 12 bore was recovered from possession of Ajeet Singh and there was one empty cartridge of 12 bore in the barrel of the pistol with smell of gun powder due to fresh shot. Another person told his name as Rakesh Kumar Tiwari and one country made pistol and two live cartridges of 12 bore were recovered from his possession. On the basis of this report, case Crime No. 27 of 2004 was registered under sections 147, 148, 149, 352, 353, 504, 307, 225, 511 I. P. C. against the above named accused persons and Case Crime No. 28/2004 and 29/2004 under section 25 Arms Act were also registered against Ajeet Yadav and Rakesh Tiwari respectively. 4. On 4. 6. 2004 at 5. 15 P. M. an F. I. R. was registered under order of the S. P. Fatehpur on the application of Bhaiyadeen dated 3. 6. 2004 in which it was alleged that Bhaiyadeen was resident of village Barwa, P. S. Jafarganj District Fatehpur and he belonged to scheduled caste. He was a poor person. On 2. 6. 6. 2004 at 5. 15 P. M. an F. I. R. was registered under order of the S. P. Fatehpur on the application of Bhaiyadeen dated 3. 6. 2004 in which it was alleged that Bhaiyadeen was resident of village Barwa, P. S. Jafarganj District Fatehpur and he belonged to scheduled caste. He was a poor person. On 2. 6. 2004 at about 9 A. M. Nihal Singh, S. O. along with the police party came to his village and they met Ranjeet Singh of village Khootajhar with whom Bhaiyadeen had enmity. As per information received by Bhaiyadeen, the police party, after visiting the house of Ranjeet Singh, arrested Manoj and two other persons and asked them to say that they were purchasing smack from the house of Bhaiyadeen and taking those persons with them the police came to his house. At that time, Bhaiyadeens daughter Maya Devi accompanied by his son Pradeep Kumar (Maya Devis brother) had come from her in laws house having Rs. 21000/- in cash with her in a bag and she was going to the Gramin Bank to deposit that amount in the Bank. The S. O. and his companions abused, beat and slapped her and snatched the bag of money from her. Pradeep and Maya Devi said to Nihal Singh S. O. that he should return the bag containing cash of Rs. 21,000/- otherwise they would go to the S P. Faiehpur and make a complaint. Chandra Kali Devi and her daughter-in-law also asked the police party to return the amount but of no avail. Then Bhaiyadeen proceeded to the office of the S. P. Fatehpur to make complaint. When the police party came to know that he had gone to the office of the S. P. Fatehpur, they attacked his house and started to beat his wife Chandra Kali Devi, brothers Ghaseetey and Murlidhar and then his brother-in-law Shobha Lal resident of Urauli, P. S. Lalauli, who had come to Bhaiya Deens house, asked the police party not to commit atrocities. Then Nihal Singh S. O. of P. S. Jafarganj and the members of police party along with Ranjeet Singh caught hold of Shobha Lal and beat him throwing him on the ground. Consequently he lost his senses. The police party took Ghaseetey, Murli and Chandra Kali to the police station and they were detained there. Then Nihal Singh S. O. of P. S. Jafarganj and the members of police party along with Ranjeet Singh caught hold of Shobha Lal and beat him throwing him on the ground. Consequently he lost his senses. The police party took Ghaseetey, Murli and Chandra Kali to the police station and they were detained there. This incident had taken place between 3-4 P. M. Bhaiyadeen after giving application to the S. P. Fatehpur regarding robbery of cash by the police party came back to his house and on reaching there in the night, he came to know about this entire incident. Shobha Lal had died as a result of beating done by the police party, but Bhaiya Deen could not go any where in the night due to fear and in the morning he went to the S. P. Fatehpur and moved this application, on the basis of which Case Crime No. 30 of 2004 under sections 304/394/504/506 I. P. C. P. S. Jafarganj District Fatehpur was registered against the members of the police party including the applicants. 5. It may be mentioned that on the basis of information received from Sri Ram Nath Chaukidar of the village Barwa on 3. 6. 04 at 4 P. M. the police of P. S. Jafarganj had prepared inquest report of the dead body of Shobha Lal at 4. 30 P. M. and had sent the same for post-mortem examination which was performed on 4. 6. 04 at 3. 20 P. M. He had the following ante mortem injuries: "1. Multiple contusions on right side of face and right side of front parietal region of the skull. " 2. Contusions of varying degree on both the shoulders and extending upto the arms. 3. Extensive contusion on both sides of the lower extremities below knee joints. 4. Rt. Knee joint is swollen. 6. Multiple contusions on right side of face and right side of front parietal region of the skull. " 2. Contusions of varying degree on both the shoulders and extending upto the arms. 3. Extensive contusion on both sides of the lower extremities below knee joints. 4. Rt. Knee joint is swollen. 6. The above case Crime No. 30/2004 against the accused Nihal Singh, Phoolchandra, Lalman, Shiv Nath Sonkar, Udaivir, Babu Singh, Jata Lal, Amresh Kumar Kaushik, Radha Devi, LTsha Devi and Ranjeet Singh was investigated by the C. O. (rural area) Fatehpur, but he, after investigation, submitted a final report in which he stated that on taking statements of witnesses and other evidence, it was found that the police party had not committed any offence nor any money was snatched by the police party, that Shobhn Lal had actually died as a result of falling from the staircase and Bhaiyadeen had lodged this false report as a counter blast to arrest of his wife. 7. Bhaiyadeen filed a protest petition against the above final report and the learned C. J. M. , after hearing the complainant, rejected the final report submitted by the C. O. (rural area) and passed order summoning the accused under sections 304, 394, 504, 506 I. P. C. Aggrieved with that order the applicants have filed this application under section 482 Cr. P. C. 8. Notices of this application were issued to opp parties No. 1 and 2. A counter affidavit has been filed by the State of U. P. (opposite party No. 1 ). A rejoinder affidavit has also been filed by the applicants to the above counter affidavit. Opposite party No. 2 filed memo of appearance of Sri I. M. Khan Advocate, but no counter affidavit was filed by him. Shri I. M. Khan, however, appeared at the time of arguments to oppose the application. 9. Heard the arguments of Mr. Nand Lal Maurya, the learned Counsel for the applicants as well as the learned A. G. A. for the State and of Sri I. M. Khan for opposite party No. 2 and perused the record. 10. After perusal of the order passed by the learned Magistrate, I find that the learned Magistrate, after filing of the protest petition, recorded statements of witnesses Mayadevi, Murli, Ghaseetey, Pradeep and Bhaiyadeen under section 164 Cr. 10. After perusal of the order passed by the learned Magistrate, I find that the learned Magistrate, after filing of the protest petition, recorded statements of witnesses Mayadevi, Murli, Ghaseetey, Pradeep and Bhaiyadeen under section 164 Cr. P. C. holding that their statements were not properly recorded by the I. O. He also referred to post mortem report of Shobha Lal and taking into consideration the injuries upon his body and the statements of Mayadevi and other witnesses whose statements were recorded under section 164 Cr. P. C. , he was of the view that a prima facie case is made out against the accused persons and the final report was liable to be rejected. Therefore, he rejected the final report and summoned all the accused persons named in the F. I. R. 11. It is to be seen that in this case the learned Magistrate, after filing protest petition against the final report, recorded statements of the aforesaid witnesses under section 164 Cr. P. C. . In this connection the legal position is that the statements of witnesses can be recorded by the Magistrate under section 164 Cr. P. C. on the request of the investigating agency only and he can not suo motu record the statement of any witness under section 164 Cr. P. C. This position has been explained by Honble Supreme Court in Jogendra Nahak v. State of Orissa (1999 (39) ACC 458 (SC)= air 1999 SC 2565 ). In this case the Magistrate had recorded statements of some persons under section 164 Cr. P. C. under the directions issued by High Court in a writ petition. The Honble Supreme Court held that the above direction of High Court was erroneous and made the following observations: " 24. Thus, on a consideration of various aspects, we are disinclined to interpret section 164 (1) of the Code as empowering a Magistrate to record the statement of a person un-sponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it. " The same view was followed by Rajasthan High Court in Birju Ram v. State of Rajasthan (2006 Cr. LJ. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it. " The same view was followed by Rajasthan High Court in Birju Ram v. State of Rajasthan (2006 Cr. LJ. l 794), in which the following observations were made: " In view of the above law laid down by Honble Supreme Court the Magistrate has no jurisdiction to record statement of aforesaid witnesses under section 164 Cr. P. C. when no request was made from the side of the I. O. for recording statements of the witnesses and as such he acted without jurisdiction in recording their statements under section 164 Cr. P. C. and as such those statements cannot be taken into consideration. The legal position is that when the Magistrate does not agree with the final report submitted in the case he has got the following options: 1. If there is sufficient evidence against the accused in the case diary and the I. O. has erroneously filed a final report, then on the basis of that evidence in the case diary the Magistrate can summon the accused persons after rejecting the final report and in that contingency the case shall proceed as a "state case". 2. If the case has not been properly investigated by the I. O. and there is no evidence in the case diary against the accused person, the Magistrate has got the following two options: (i) He can direct the investigating agency to investigate the matter further and then submit a report under section 173 Cr. P. C. (ii) He can on the basis of the affidavits of the complainant and his witnesses reject the final report and treat the protest petition as a complaint and then after taking cognizance record statements of the, complainant and his witnesses under sections 200 and 202 Cr. P. C and then he can pass suitable orders in the matter as a "complaint case. " 13. In the present case apparently there was no evidence against the accused in the case diary. The so called statements of witnesses under section 164 Cr. P. C. upon which the Magistrate has relied were not recorded by him during the course of the investigation on the prayer of the Investigating Officer but he had suo motu recorded these statements under section 164 Cr. The so called statements of witnesses under section 164 Cr. P. C. upon which the Magistrate has relied were not recorded by him during the course of the investigation on the prayer of the Investigating Officer but he had suo motu recorded these statements under section 164 Cr. P. C. which he could not do as laid down by Honble Supreme Court in the ruling referred to above. The proper procedure for him, after rejecting the final report was either to refer the matter to the investigating agency for further investigation or he could treat the protest petition as "complaint" and then take action after recording statements of complainant and witnesses under sections 200 and 202 Cr. P. C. . He did not adopt either of these two procedures but he suo motu recorded statements of witnesses under section 164 Cr. P. C. which he could not do without prayer of the investigating agency and so the summoning order passed by him on the basis of those statements is apparently illegal. It cannot be maintained and is liable to be set aside. 14. In view of above, the application 482 Cr. P. C. is hereby allowed to this extent that the impugned summoning order dated 18. 9. 2006 passed by the C. J. M. Fatehpur in Case No. 4862 of 2004, State v. Nihal Singh and others, Case Crime No. 30/04 under sections 304, 394, 504, 506 I. P. C. , P. S. Jafarganj District Fatehpur is quashed and the matter is remanded to his Court for rehearing in accordance with law. He may, after rehearing, pass suitable orders in the matter in the light of the observations made above in the body of the judgment. .