- (1.) N. B. Asthana, J. A short point for determination in this revision is as to whether the Special Judge (Decoity Affected Area), Etawah took cognizance of the case under Section 190 (1 ) (a) or under Section 190 (1 ) (b) or under Section 190 (1) (b) of the Cr PC.
(2.) THE first information report was filed by one Munendra Singh against 27 persons. He thereafter moved an application under Section 156 (3) of Cr PC upon which the police submitted a final report. Munendra Singh fired a protest petition. On 12-7-1990 the trial judge passed the following order : "perused the C. D. F. R. , the protest petition. Put up (on) 9-8-1990 for the statement of complainant. He may fire affidavit. " The order-sheet dated 9-8-1990 is as follows :- "perused the C. D. F. R. , the protest petition and the affidavits. 27 persons are alleged to have committed the offence of dacoity with fire-arms. No injury. Summon the accused Raj Bahadur only under Section 395, IPC. The protest petition against the remaining accused is dismissed F. R. against all the accused except Raj Bahadur is accepted. Summon Raj Bahadur against whom there appears reasonable ground to proceed under Section 395, IPC. Put up on 20 9-1990," Whenever on completion of the investigation the police sends an adverse report under Section 173 (1), the Magistrate may take any of the following steps : (1) If he agrees with the police report and finds that there is no sufficient grounds for proceeding further, he may drop the proceedings and dismiss the complaint. (2) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint under Section 190 (1) (b ). (3) Even where he disagrees with the adverse report he may instead of taking cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203, Cr PC.
(3.) FROM the order dated 12-7-1990 it appears that the Magistrate wanted to proceed under Section 190 (1) (a) and fixed the date for statement of the complainant and directed him to file affidavits. It has not been disputed that the evidence under Section 202, Cr PC cannot be taken on affidavits. The above order would, therefore, mean that the trial judge fixed 9-8-1990 for statement of the complainant. On 9- 8-1990 he did not record the statement of the complainant and on the basis of the protest petition and the affidavits he summoned Raj Bahadur to stand trial under Section 395, IPC. The order sheet further shows that he did not accept the final report is so far as it related to Raj Bahadur and summoned him. The argument is that on 12-7-1990 the trial Judge intended to proceed under Section 190 (1 ) (a), Cr PC and, therefore, on 9-8-1990 he should have recorded the statement of the complainant, the evidence under Section 202, Cr PC and then should have proceeded in the matter as on a complaint.;