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22. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said:

"Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated." (emphasis added)

23. In Kallu and others Vs. State of U.P. 2010 (69) ACC 780, Court said:

"Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in section 200 and 202 Cr.P.C."

24. Court further held:

"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 affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance."

(emphasis added)

25. In Mitrasen Yadav Vs. State of U.P. 2010 (69) ACC 540, Court said that on the basis of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C. can be taken.

26. In Criminal Revision No. 1601 of 2015 (Mukeem and 2 others Vs. State of U.P. and another) decided on 07.08.2015, Court while deprecating procedure followed by Magistrate by relying on Protest Petition and its documents, without following procedure of complaint, said:

"The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned ''प्रस्तुत प्रोटेस्ट प्रार्थनापत्र व अभिलेखीय साक्ष्य के आधार पर" which is erroneous in view of the law cited above."