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This criminal revision has been preferred against the order dated 4.3.2015, passed by learned Chief Judicial Magistrate, Fatehpur in Case No. 799 of 2015, arising out of Case rime No. 67 of 2013 under Section 302 I.P.C., P.S. Lalauli, District Fatehpur, whereby learned Magistrate has summoned the revisionist for facing trial under Section 302 I.P.C. on the protest petition filed by the first informant.

The facts giving rise to this revision are that an F.I.R. was got lodged by the first informant Nafees stating that his father Rahees Ahmad was engaged in sale-purchase business of he- goats.In the night of 11.4.2013 he went to Bahuwa for purchase of he-goats and was returning to his village Dulapur on his motorcycle, when he reached Wahidapur, accused revisionists Mukeem, Rasheed and Mobeen who have enmity, commited murder of his father Rahees and put motorcycle on his dead body. In this regard the F.I.R. was registered at police station Lalauli being Case Crime No. 67 of 2013 under Section 302 I.P.C. Police investigated the matter and submitted final report. Against the final report the first informant-respondent no. 2 filed protest petition in which no evidence was lead and it was allowed on 4.3.2015.Rejecting the final report, accused-revisionists were summoned for facing the trial under Section 302 I.P.C, which is assailed in this revision.

If after taking evidence under Section 200 and 202 Cr.P.C. the magistrate decides to take cognizance against the accused persons, final report has to be rejected but in any case cognizance cannot be taken merely on the basis of affidavit or other material filed by the complaint in support of the protest petition against final report without following procedure laid down under Chapter XV Cr.P.C, if the material in the case diary is not sufficient to take cognizance.

Same view was expressed in case of Mitrasen Yadav Vs. State of U.P. Reported in 2010(69) ACC 540 and has been held that on the basis of the protest petition and documents filed therewith, no cognizance under Section 190(i)(b) Cr. P.C. can be taken.

The Division Bench of this Court in case of Aakahnda and others Vs. State of U.P. And others, reported in 2001(43) ACC 1067 has held as under :-

"That on filing final report, cognizance cannot be taken on the basis of extraneous material like affidavit filed in support of the protest petition against final report and if the material in the case diary is not sufficient for summoning the accused persons then the procedure laid down in Chapter XV Cr.P.C. is to be followed after treating the protest petition as complaint."

It is clear from the above case laws that if in any case the final report is submitted by the police, against which protest petition is filed by first informant then magistrate has following three options:-

1-He may accept the final report and drop the proceedings, or 2-He may direct the police for further investigation, or 3-He may summon the accused on further two grounds:
(A) If he chooses to summon the accused on the bases of evidence collected by the Investigation officer, he may do so directly without any further evidence. or (B) If accused is summoned on the basis of protest petition, relying on extraneous material filed with protest petition, then he has to follow the procedure laid down under chapter XV of Cr. P.C. i.e. to treat the protest petition as complaint and record the evidence u/s 200 and 202 Cr P.C. and cognizance cannot be taken on the basis of extraneous material u/s 190 (1)(b) Cr .P.C, without following the aforesaid procedure.