JUDGMENT Hon’ble S.C. Agarwal, J.—Heard Sri Manish Tiwary, learned counsel for the applicants and learned AGA for the State. 2. No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved. 3. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned summoning order dated 28.9.2010 passed by the Chief Judicial Magistrate Bareilly in Criminal Misc. Case No. 312 of 2007, under Sections 307, 323, 384, 506, 147 IPC, P.S. Baradari, District-Bareilly whereby the final report submitted by the police was rejected and on the basis of protest petition filed by opposite party No. 2, the cognizance was taken and the applicants were summoned to face trial. 4. Learned counsel for the applicants submitted that the Magistrate acted illegally on taking cognizance on the basis of affidavits submitted by the witnesses. 5. A perusal of the impugned order reveals that cognizance has been taken on the basis of statement of the complainant recorded under Section 161 Cr.P.C. and also on the basis of affidavits submitted by the witnesses Uwais and Bachhu. 6. The Division Bench of this Court in Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 has held that : (1) he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant ; or (2) he may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed ; or (3) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner ; or (4) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or pretest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. 7. 7. After receipt of protest petition filed by the complainant against the final report submitted by the police, the Magistrate could have taken cognizance on the basis of police report, if there was sufficient material available on the case diary, or could have accepted the final report, or could have directed further investigation, or could have treated the protest petition as a complaint case and should have proceeded in accordance with the procedure prescribed for the complaint cases. 8. In the instant case, the Magistrate has neither taken cognizance on the basis of material available on the case diary, nor the procedures prescribed in the complaint case have been adopted. The cognizance cannot be taken on the basis of affidavits furnished by the witnesses. The only option open to the Magistrate was to take cognizance under Section 190 (1) (b) Cr.P.C., if there was sufficient material in the case diary to summon the accused. If the material is not sufficient, the Magistrate can treat the protest petition as a complaint case and take action in accordance with provisions as contained in Section 200 and 202 Cr.P.C. In these circumstances, the impugned order cannot be sustained and is liable to be set aside. The application is allowed. The impugned summoning order dated 28.9.2010 is set aside. The matter is remanded to the Magistrate to decide the matter afresh in the light of observations made above. —————