- (1.) J. K. Mathur, J. This petition under Section 482, Cr. P. C. has been directed against the order passed by IInd Addl. Sessions Judge, Kheri acting as Special Judge under the provisions of Scheduled Castes and Sechduled Tribes (Prevention of Atrocities) Act, 1989, issuing process against the petitioners.
(2.) CONSEQUENT to the first Information Report, a Final Report was filed by the police, the Investigating Officer being of the view that the offences alleged under Section 419/420/467/468/471/506, I. P. C. were not made out by the evidence collected by him. When this Final Report came before the Sessions Judge, he also, after persual of the evidence, was of the opinion that the statements recorded by the Investigating Officer did not support the prosecution case. However, after considering the statement of Gopal, the informant and two other witnesses who filed certain affidavit and documents which were taken into account by the learned Sessions Judge, he issued process, finding that they show prima facie case against the petitioners. I have heard learned Counsel for the parties. The main contention raised on behalf of the petitioners is that the learned Sessions Judge could have taken cognizance on police report, even if it was a final report, yet he could not have tftken cognizance on the protest application, supported by the evidence and documents with at proceeding under Sections 200 and 202, Cr. P. C.
(3.) IT is not disputed that the Magistrate can take cognizance on a police report, even if it is a final report, if he is of the opinion that from the evidence collected during the investigation, forming a part of the report, a prima facie case is made out. This has been finally settled by a number of Supreme Court Cases including Abhinandan Jha v. Dinesh Misra, AIR, 1968, Supreme Court 167, H. S. Bens v. The State, 1981 (1) Supreme Court Reports, 935 and India Carate Pvt. Ltd. v. State of Kamataka, 1990 LLJ 370. However, if the Magistrate, as in this case, takes cognizance on material which does not form a part of the police report, he has no options but to treat is as a complaint and proceed under Section 200, Cr. P. C. and if necessary, conduct or get the inquiry conducted under Section 202, Cr. P. C. He cannot take cognizance on such material which is not a part of the police report as on police report. The order passed by the learned Additional Sessions Judge, therefore, in this case is not in accordance with law and is lable to be set aside.;