In view of undisputed question of fact, passing of common order clubbing both private complaint and police report without recording statements of witnesses in the protest petition is an illegality committed by the Magistrate. Even otherwise, though the Magistrate is competent to verify the material to proceed against the other accused, in Dharam Pal v. State of Haryana (referred supra) the Apex Court laid down certain guidelines to be followed by the Courts. According to principles laid down therein, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(2) of Cr.P.C and to proceed against the accused persons dehors the police report. The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column No. 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit
