N.B. Astiiana, J. - (1.) Smt. Kamlesh Shukla lodged an F.I.R. against the revisionist, his son Chandra Pal and his daughter Smt. Urmila on the basis of which Case Crime No. 373/91 under Sections 342, 376, 323 and 506 I.P.C. P.S. Nawabganj, Bareilly was registered. Smt. Kamlesh Shukla was medically examined and her statement under Section 164 Cr.P.C., was also recorded. The police after investigation submitted charge-sheet under Section 323/504 I.P.C. against the accused. Investigating officer was of the opinion that no case under Sections 342/376 1.P.C. was made out. Smt. Kamlesh Shukla then tiled a protest petition upon which the Judicial Magistrate concerned summoned the revisionist under Sections 342/376 I.P.C., as well. Aggrieved by it, the revisionist has approached this court.
(2.) I have heard the learned counsel for the parties and have perused the material available on record.
(3.) It has now been settled by the Supreme Court in H.S. Bains v. State, 1981 (18) ACC 146 (SC) ' that in case of a police final report the Magistrate can differ from the police view and can take cognizance straight way under Section 190(1) (b) Cr. P.C. In all final report case where there is no formal complaint, the essential basis for the Magistrate taking cognizance is the first information report and the material contained in the case diary, the reason for cognizance being that the Magistrate differ from the conclusion arrived at by the police. The protest petition was not treated as a complaint by the Magistrate and, therefore, it was not necessary for him to record the statement under Section 200 Cr. P.C. and evidence Under Section 202 Cr. P.C. In Ram Singh v. State, 1982 ACJ 255 ' it was held that : "It is, therefore, clear that the Supreme Court in no uncertain terms expressed the view that although a final report is submitted, the Magistrate could on the basis of documents submitted to him under Section 169 Cr. P.C., come to a different conclusion and take cognizance of the offence under Section 190(1)(b) of the Code in spite of the contrary opinion of the police expressed in the final report. In a police case where the police submits a final report, it is open to the Magistrate to accept the final report or to ask the police to make further investigation under Section 156 (c) Cr. P.C. or to disagree with the police report, and on the basis of record which is in the shape of a case diary which is invariably sent when a final report is submitted, to come to a different conclusion and issue process summoning the accused. In case the Magistrate issues process to the accused, it is not open to the accused to challenge that order either by way of revision or by way of petition under Section 482 Cr. P.C. It is also not necessary for the Magistrate to pass a detailed order going to the merits of the case, when he summons the accused. In case the Magistrate treats the protest application as a complaint, he has to clearly mention that the protest application is being treated as a complaint and once he mentions that fact then he has to adopt a procedure mentioned in Chapter XIV of the Code of Criminal Procedure, namely, examining the complainant under Section 200 Cr. P.C., examining the witnesses under Section 202 Cr. P.C. and so on and so forth.";