N. B. ASTHANA, J. ( 1 ) SMT. Sanju Kumari opposite party No. 2 wife of Madan Mohan revisionist No. 2 lodged a report under Sections 498a, 323 and 506 I. P. C. at police station Liamadpur, Agra on 2. 5. 1990. On the basis of this report Crime No. 508 of 1993 was registered against all the six revisionists. The Investigating Officer enquired into the matter Affidavits were filed before him by Smt. Sanju Kumari, her father and witnesses contrary to the allegations made in the F. I. R. The Investigating Officer then submitted a final report. ( 2 ) NOTICE was issued by the court to the first informant Smt. Sanju Kumari. She appeared and filed an affidavit corroborating the allegations made in the F. I. R. Her father also filed affidavit corroborating the allegations made in the F. I. R. upon which the VIIth Addi. Chief Judicial Magistrate, Agra took cognizance of the case and summoned the revisionists vide order dated 2. 5. 1994 under Sections 498a, 323 and 506 I. P. C. He did not accept the final report. Aggrieved by it the accused have come to this Court in revision. I have heard the learned counsel for the parties and have parused the record. ( 3 ) FROM the order passed it does not appear that any protest petition was filed. In all probability it appears that such protest petition would have been filed and in support thereof the two affidavits were filed. From the order it is clear that while taking cognizance of the case and rejecting the final report the VIIth Addi. Chief Judicial Magistrate, Agra relied upon the affidavits of the witnesses filed before him. He did not rely upon the material which formed part of the case diary. The Magistrate has, however, not indicated as to under which provision of the Criminal Procedure Code the cognizance has been taken. ( 4 ) SECTION 190 (1) (b) of Cr. Chief Judicial Magistrate, Agra relied upon the affidavits of the witnesses filed before him. He did not rely upon the material which formed part of the case diary. The Magistrate has, however, not indicated as to under which provision of the Criminal Procedure Code the cognizance has been taken. ( 4 ) SECTION 190 (1) (b) of Cr. P. C. entitles a Magistrate to take cognizance of an offence even if police report is to the effect that no case has been made out against the accused but while doing so the Magistrate can take into account the statement of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused but this would apply only when the Magistrate relies upon the evidence the material submitted to him in the form of case diary along with the final report. ( 5 ) IN the instant case the Magistrate has not relied upon the material collected by the Investigating Officer and submitted to him in the form of a case diary in summoning the revisionists. He has relied upon the affidavits filed before him. This was not permissible if he wanted to take cognizance under Section 190 (1) (b) of the Cr. P. C. Since he did not take action against the aforesaid provision, the procedure available to him was to record statement under Section 200 Cr. P. C. and then proceed in the matter in accordance with law. He could not have taken cognizance straightway only on the basis of the affidavits filed before him. The revision has, therefore, to be allowed. ( 6 ) THE revision is allowed. The impugned order dated 2. 5. 1994 passed by VIIth Addi. Chief Judicial Magistrate, Agra is set aside. The Addi. C. J. M. , Agra is directed to proceed in the matter in accordance with law and in the light of what has been stated above in this revision. Revision allowed. Matter remanded. .