Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the applicants and the learned AGA for the respondent No. 1 and also perused the record.

2. It appears that in the case Crime No. 130 of 2010 under Section 304-B IPC, police station Mansoorpur, district Muzaffarnagar, the investigating officer submitted a final report against which the respondent No. 2 filed a protest petition alongwith her affidavit and also the affidavits of the witnesses Smt. Rekha and Smt. Bedi. The learned Additional Chief Judicial Magistrate, Court No. 1, Muzaffarnagar considered the final report as well as the protest petition together and passed the impugned order dated 25.11.2010, whereby the learned Magistrate accepted the protest petition and rejected the final report and took cognizance of the offence under Section 304-B IPC. Learned Magistrate further directed issue of processes to the applicants.

3. The relevant facts of the case are that the deceased Smt. Rekha was the wife of the applicant No. 1 Vikrant. She sustained serious burn injuries in the house of the applicants on 10.3.2010 at about 6.00 a.m. and died on 2.4.2010 in the Medical College, Meerut. Initially she was taken to Jeo Nath Hospital, Dwarikapuri, Muzaffarnagar for treatment but was referred to the Medical College, Meerut on 27.3.2010. The cause of death was Septicaemia on account of burn injuries. It is also alleged that a dying declaration of the deceased was recorded in the Jeo Nath Hospital, Muzaffarnagar by Sub Divisional Magistrate, Sadar Sri Narendra Singh. In that statement, the deceased stated that she sustained burn injuries accidentally. The investigating officer examined so many witnesses in support of the story that the death of the deceased was accidental and not homicidal. The complainant and her witnesses were also interrogated under Section 161 of the Code, who supported the FIR version. The investigating officer keeping in view the statements of the witnesses submitted a final report. The learned Additional Chief Judicial Magistrate found adequate materials against the applicants, therefore, he rejected the final report and summoned the accused.

4. The learned counsel for the applicants submitted that it was obligatory on the part of the learned Additional Chief Judicial Magistrate to record the statements of the respondent No. 2 under Section 200 of the Code and also to hold an inquiry under Section 202 of the Code before passing the summoning order, therefore, the summoning order was bad in law. The learned counsel further submitted that the Magistrate has ignored the dying declaration and the statements of the witnesses, who were neighbours of the applicants while considering the final report.

5. In my opinion, the learned Additional Chief Judicial Magistrate was not required to record a judgment at the stage of taking cognizance of the offence. He was required only to peruse the materials collected during the investigation to ascertain as to whether any prima case for summoning the applicants had been made out or not. The learned Additional Chief Judicial Magistrate neither treated the protest petition as complaint nor decided to proceed therewith as a complaint case, therefore, he was not required to adopt the procedure prescribed in chapter XV of the Code. The learned Additional Chief Judicial Magistrate took cognizance of the offence under Section 190(1)(b) of the Code on the police report and as such there was no question of recording the statements of the respondent No. 2 and her witnesses before summoning the applicants. What was required from the learned Additional Chief Judicial Magistrate was to peruse the materials collected during the investigation. If any prima facie case was made out from such materials, it was open to the Magistrate to reject the final report and take cognizance of the offence.

6. In regard to the police report, whether it is in the form of charge-sheet or the final report. The power of the Magistrate is well settl