Naresh Pal Singh vs State Of U.P. And Others on 24 October, 2013
In the case of Deokinandan and others (supra) too, this Court has held that "Even if it is assumed for argument's sake that the learned Magistrate could not have considered the affidavit while taking cognizance under Section 190 (1) (b), Cr.P.C. the order of the Magistrate will clearly indicate that he has, in fact, come to the conclusion that the statements recorded by the investigating officer during further investigation, namely, the statements of the complainant and his witness Satish, Naresh and the nurse Smt. Kunti Devi alias Manorama under Section 161, Cr.P.C. fully support the prosecution version. These observations of the learned Magistrate show that, in fact, he has found his opinion on the basis of the statements under Section 161, Cr.P.C. No doubt, a little further in his order, he has stated that on a consideration of the affidavit of the complainant and the statements in the case diary, prima facie, case is made out but it is quite evident that this opinion is not really based on the affidavit of the complainant but on his statement and statement of these witnesses recorded under Section 161, Cr.P.C. The statement of the complainant has also been recorded under Section 161, Cr.P.C. If he merely filed an affidavit to the same effect, it could not be said that the learned Magistrate was really influenced by the affidavit and not by the statement under Section 161, Cr.P.C. If he could take cognizance on the basis of the statement under Section 161, Cr.P.C, as he could, indeed, do, according to law, merely filing of an affidavit of the complainant in addition to that statement under Section 161, Cr.P.C could not make any difference in the situation. For this reason also, the submission of the learned counsel for the petitioners cannot be accepted."