RAFIQUDDIN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicants and learned AGA.

(2.) AFTER investigation a final report was submitted by the police. Respondent no. 2 filed a protest petition in which she did not aver any material other than which is contained in the case diary. In the affidavit which was filed in support of the protest petition in paragraph 5 there of was specifically stated that the accused were summoned on the basis of the material contained in the case diary. On the same basis the magistrate exercised the power under S.190 (i) (b) CrPC and summoned the applicants. There is no illegality in the order passed by the magistrate as the magistrate was competent enough to take recourse to the said provision. In a Division Bench judgement of this Court in Pakhando's case has, been laid down that if there is any material other than the investigation record only then the Magistrate is required to follow the procedure of a complaint case. Any other material means anything which has not been stated during the course of the investigation and was subsequently added in affidavit filed in support of the protest petition. Any other material does not mean repetition of those very facts which have been said or brought to the knowledge of the investigating officer during the course of investigation. Repetition of that very material on an affidavit which was brought to the notice of the investigating officer during the course of investigation is not material other than the investigation record. Consequently, the submission of the counsel for the applicant that the magistrate should have (sic) followed the procedure under S.190(i)(b) CrPC and should have taken recourse to the procedure of the complaint case is not acceptable and hence is rejected.