- (1.) The petitioners have filed this petition under Section 482, Cr. P.C. for quashing the order dated 6.2.2004, passed by the Judicial Magistrate, Mohammadi, district Kheri in Criminal Case No. 2747/2004. State v. Sri Krishna and Others arising out of Case Crime No. 77/1998, under Sections 147, 323, 354, 504 and 506, I.P.C., P.S. Kotwali Mohammadi, district Kheri by which the learned Magistrate has rejected the final report submitted by the Police and accused were summoned on the basis of affidavit filed by the complainant to face trial.
(2.) Heard learned counsel for the petitioner, learned Additional Government Advocate for the State as well as learned counsel for opposite party No. 2.
(3.) It is contended by learned counsel for the petitioners that where police submits final report, though it is open to the Magistrate to take cognizance under Section 190(1)(b), Cr. P.C. on the basis of investigation records but in that event he cannot take any external aid of any other piece of evidence or material which does not form part of police papers. If he decides to take into account any material or evidence other than police papers prepared during investigation, he is bound to comply with the requirement of Sections 200 and 202 of the Code. It was argued that since in the present case the learned Magistrate has taken into consideration the affidavits of the complainant filed alongwith the protest petition, he was bound to follow procedure laid down for complaint cases. It was also contended that if the Magistrate felt that the Investigating Officer failed in his duty in collecting relevant material, he should have directed further investigation instead of issuing process against the applications on the basis of material brought on record in the form of affidavits. Learned counsel for the petitioner also placed reliance in the case of Smt. Mithlesh Kumari v. State of U.P. and Others.,1996 33 ACC 214, before this Court.;