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. " 3. 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," 4. 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. 5. 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. 5. 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. 6. 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. 7. In Sabir Ali v. State of U. P. and another, 1988 ACC 263, it was held that "even after once accepting a final report submitted by the police, the Magistrate can take cognizance of the case either (i) on the protest petition treating it as a complaint or (ii) on the police report itself if he comes to the conclusion on the basis of new facts or after hearing the parties and perusing the papers that are made available to him that on the previous occasion he had over-looked some important aspect of the case and he can revise his earlier order. 8. In the first contingency he has to proceed on the protest petition and hence the procedure prescribed for a complaint case has to be undergone. 9. In the second case the cognizance is again taken on the police report itself and it will be a cognizance under Section 190 (i) (a) of the Code of Criminal Procedure and straightway summonses can be issued. 9. In the second case the cognizance is again taken on the police report itself and it will be a cognizance under Section 190 (i) (a) of the Code of Criminal Procedure and straightway summonses can be issued. It would clearly be taking cognizance on the police report as a result of second thought which is permissible under the law and the cognizance being under Section (1) (a) of the Cr PC the Magistrate will be perfectly justified to straightway summon the accused without resorting to the procedure laid down in Sections 200 and 202 of the Cr PC. 10. From the above ruling it is clear that the trial Judge upon second thought can proceed under Section 190 (i) (b) of the Cr PC although initially he intended to proceed under Section 190 (i) (a) of the Cr PC. From the fact that on 12-7-1990 he ordered for recording of statement of the complainant on 9-8-1990, but he did not record the statement of the complainant would clearly indicate that on 12-7-1990 he intended to proceed under Section 190 (1) (a) of Cr PC but on second thought he changed his mind on 9- 8-1990 did not intend to proceed under Section 190 (1) (a) of the Cr PC and, therefore, did not record the statement of the complainant. In Satyapal and others v. State of U. P. , 1988 ACC 326, it was held that taking cognizance on pretest petition would not amount to taking cognizance under Section 190 (1) (a) of the Cr PC and the procedure for complaint case is not to be followed. From the order passed on 9-8-1990 it is clear that the trial Judge did not treat the protest petition as a complaint. In Ravish Chandra v. State of U. P. , 1986 ACC 90, it was held that on the basis of police report, medical report, protest petition, case diary and other papers filed cognizance can be taken and the Magistrate can summon the accused straightway. It was not necessary to proceed under Section 200, Cr PC or 202, Cr PC. In Ravish Chandra v. State of U. P. , 1986 ACC 90, it was held that on the basis of police report, medical report, protest petition, case diary and other papers filed cognizance can be taken and the Magistrate can summon the accused straightway. It was not necessary to proceed under Section 200, Cr PC or 202, Cr PC. In Ram Singh v. V. P. State, 1982 Allahabad Criminal Judgments 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 PC come to a different conclusion and take cognizance of the offence under Section 190 (i) (b) of the Code in spite of the contrary opinion of the police expressed in the final report. 11. In a police case where the police submits of 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 PC 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 stunted, 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 PC. 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. 12. 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 PC, examining the witnesses under Section 200, Cr PC and so on and so forth. " "in Gajadhar Singh v. Mahesh Chandra, 1981 Allahabad Criminal Casts 66 (Summary of Cases), it was held that "coming to the legal position it has now been settled by the Supreme Court in H. S. Bains v. State, AIR 1980 SC 1983 , that in case of a police final report the Magistrate can differ from the police view and can take cognizance straightway under Section 190 (1) (b), Cr PC. In such cases the procedure to be followed would be the sams as in case of taking cognizance on a police report. It seems to me that irrespective of the Magistrates intention cognizance has to be scribed to the true source of Magistrates powers. In all final report cases 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 differs from the conclusion arrived at by the police. It is now clear from Bains case that cognizance can be taken under Section 190 (1) (b), Cr PC and therefore must be dented to have been taken under that provision. Therefore, I think in law the Magistrates order has now after clarification of the legal position in Bains case to be treated as a case of cognizance under Section 190 (1) (b), Cr PC. 13. The trial judge neither specified that he is proceeding under Section 190 (1) (a) of the Cr PC nor he recorded the statement of the com plainant and the witnesses under Section 202, Cr PC. It cannot, therefore, bee said the magistrate proceeded under Section 190 (1 ) (a) of the Cr PC. 14. In view of the relevant law as dismissed above the magistrate was competent to consider the protest petition, the case diary, the first information report and other papers submitted with the police report and take cognizance under Section 190 (1 ) (b) Cr PC. Simply because ha also considered the affidavits files along with the protest petition it cannot be said that he proceeded under Section 190 (1) (a) of should have proceeded under Section 190 (1) (a), Cr PC. The Magistrate had a discretion either to proceed under Section 190 (1) (a) or under Section 190 (1) (b), Cr PC. Simply because ha also considered the affidavits files along with the protest petition it cannot be said that he proceeded under Section 190 (1) (a) of should have proceeded under Section 190 (1) (a), Cr PC. The Magistrate had a discretion either to proceed under Section 190 (1) (a) or under Section 190 (1) (b), Cr PC. Simply because he considered protest petition and the affidavits, it cannot be said that he should have proceed under Sections 200 and 202, Cr PC before passing the summoning order. 15. Reliance on behalf of the revisionist has been placed upon a number of rulings to argue that the Magistrate should have proceeded in the matter under Section 190 (1) (a) of the Cr PC. 16. In Ram Kumar and others y. (Smt.) Kalawati and others, 1991 ACC 24, it was held that "after filing of protest petition the learned Magistrate had three options. As could have sent back the case to the Investigating Officer for further investigation ; or he could have treated the protest petition as complaint and proceeded with the protest petition as complaint case ; or after perusing the case diary he could have differed with the conclusion of the Investigating Officer and could have taken cogni zance of the case under Section 190 (1 ) (c) on the basis of statement etc. found in the case diary. But he could not have jumbled the second and the third options. When the Magistrate recorded the statement of the complainant it became clear that he treated the protest petition as a complaint. When he did that he could not have relied upon affidavits. He ought to have required the complainant to file list of witnesses. He should have then examined the witnesses under Section 202 (2), Cr PC. It is evident that the learned Magistrate (to) confused the procedure adopted by him. " 17. In view of the fact that the Magistrate had recorded the statement under Section 202, Cr PC he was directed to proceed in the matter under Section 190 (1) (a) of the Cr PC. It is not the case here because the statement of the complainant was not at all recorded. 18. The other ruling relied upon is Udai Ram and others v. State of U. P. and others, 1992 ACC (Suppl.) 540 :1991 JIC 321 (All ). It is not the case here because the statement of the complainant was not at all recorded. 18. The other ruling relied upon is Udai Ram and others v. State of U. P. and others, 1992 ACC (Suppl.) 540 :1991 JIC 321 (All ). This ruling would not help the revisionist in the present controversy. In that case a complaint was filed upon which the Magistrate directed the police to investigate. The final report was submitted, which the Magistrate did not accept and recorded the statement of the complainant under Section 209, Cr PC. He also recorded the statements of some other witnesses under Section 202, Cr PC and then passed the order summoning the accused. One of the points argued in the revision was that the procedure of the complaint case having been resorted to by the Magistrate, it was incumbent upon him to have examined all the eye-witnesses in view of the provision contained under Section 202, Cr PC and that having not been done the order is illegal. It was held that the case proceeded on a complaint and if the police had taken an attitude not acceptable to the complainant, his right to examine his witnesses under Section 202, Cr PC cannot be permitted to be taken away. It was further held that before issuing process the Magistrate is required to call upon the cook plain ant produce all his witnesses and examine them on oath. Since all the witnesses were not examined on path, the order passed by the Magistrate summoning the accused was set side with the direction that if the application is moved by the complainant for examination of all his witnesses in view of the proviso contained in Section 202, Cr PC it will be decided in accordance with law. 19. The last ruling relied up is Ajit Kumar and others v. State of U. P. and others, 1994 UP Cr. R. 303. It is a short ruling in which it was held that if the Magistrate takes cognizance on material which does not form a part of the police report, he has no option but to treat it as a complaint and proceed under Section 200, Cr PC and, if necessary, conduct or get the injury conducted under Section 202, Cr PC. He cannot take cognizance on such material which is not a part of the police report. 20. He cannot take cognizance on such material which is not a part of the police report. 20. In the instant case it would appear from the order in question that trial Judge considered the final report, accepted it in so far as the remaining accused were concerned but did not accept it in so far as the revisionist was concerned. The following sentence in the order dated 9-8-1990 is relevant:- "f. I. R. against all the accused except Raj Bahadur is accepted. " 21. The trial Judge may have perused the affidavits filed in support of the protest petition but it appears he did not act upon these affidavits because otherwise he would have summoned all the 27 persons. He relied upon the protest petition and after perusing the final report summoned only Raj Bahadur accused. It cannot be said that in summoning the revisionist he relied upon the material which did not form part of the final report. . 22. In view of the above the trial Judge would be deemed to have taken cognizance of the case under Section 190 (1) (b) of Cr PC. 23. The revision has no force and is liable to be dismissed. The stay orders granted on 26-2-1991 and 4- 5-1991 are vacated. Revision dismissed. .