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