The Magistrate has the power to differ from the conclusion of the investigating officer and to record his own conclusion based on the materials collected during the investigation. The Special Court, being a Court of Session, could not take cognizance of the offence under section 3(1) of the Act straightway without the case being committed to it by a Magistrate.

Shri Kant Tripathi, J.

Heard Mr. U.C. Misra for the applicants and the learned AGA for the respondent No. 1 and perused the record.

2. This is a petition under section 482 CrPC for quashing the summoning order dated 23.10.1990 passed by IInd Additional Sessions Judge/Special Judge, Etawah in Special Case No. 3 of 1991, State v. Mahabir and others, under sections 323, 324, 427 and 435 IPC and section 3(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the Act).

3. Mr. U.C. Misra submitted that the learned Additional Sessions Judge has taken cognizance of the offences under sections 323, 324, 427, 435 IPC and section 3(1) of the Act not on the basis of materials collected during the investigation but on the basis of the affidavits of the complainant and the witnesses, which were not part of the case diary, therefore, cognizance of the offences was not proper.

4. It is well settled that whenever any police report is filed, the Magistrate has power to differ from the conclusion of the investigating officer and to record his own conclusion on the basis of the (materials collected during the investigation and is not bound by the conclusion of the investigating officer. In case the Magistrate finds that there are adequate materials collected during the investigation to make out a prima facie case against the accused, he has power to reject the final report and take cognizance of the offences. In appropriate cases, where the investigating officer fails to collect the relevant materials and evidences or did not make the investigation in a correct manner, the Magistrate has power even to direct for further investigation. But if the materials collected during the investigation do not make out any case, the Magistrate can not take cognizance on the basis of extraneous materials, such as affidavits of the complainant and the witnesses. In such situations, the Magistrate may treat the protest petition as complaint and proceed therewith in accordance with Chapter XV of Cr.P.C. In appropriate cases, on the basis of the affidavits, further investigation can be directed. But in no case cognizance of any offence on the final report can be taken under section 190 (1) (b) CrPC on the basis of the affidavits of the complainant and witnesses, if the materials collected during the investigation do not make out any case.

5. Therefore, the learned Additional Sessions Judge has committed material error of law in taking cognizance of the aforesaid offences only on the basis of affidavits, which were not part of the case diary.

6. It may also be mentioned that the offence under section 3(1) of the Act is triable by the Special Court constituted under the Act. The Special Court is essentially a Court of Session, therefore, it could not take cognizance of the offence under section 3(1) of the Act as well as other offences straightway. The cognizance of an offence by the Court of Session is taken only on the committal of the case by the Magistrate and not otherwise. Section 193 of the CrPC is very clear on this point, which provides:

"193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

7. The Act is silent as to how cognizance of an offence under the Act is to be taken, therefore, the provisions of CrPC will govern the mode and manner of taking cognizance of the offence under section 3(1) of the Act, specially when the provisions of section 4 of the CrPC so provides. According to the provisions of section 190 CrPC only the Magistrates are competent to take cognizance of the offences. The Court of Session is empowered to take cognizance only when the case is committed to it by the Magistrate in accordance with the provisions of section