Hon’ble Sudhir Agarwal, J.—Heard learned counsel for revisionists, learned A.G.A. for State-respondent, and, perused the record.

2. This criminal revision under Section 397/401 Cr.P.C. has arisen from order dated 24.7.2004 passed by Special Judge (D.A.A.), Agra rejecting final report submitted by police and accepting protest petition on the basis of affidavits filed alongwith protest petition. Thereafter, Trial Court took cognizance of the offence under Section 394 IPC against revisionists and issued non-bailable warrant fixing 28.8.2004 for appearance of accused revisionists.

3. The facts in brief, as borne out from the record, are that in the night intervening 18/19.7.2001 while informant Birma Devi, her brother Ram Naresh and grandmother Ramshri were sleeping in the Courtyard inside house, at about 2 a.m., all the four accused revisionists armed with bricks and dandas entered in the house and assaulted informant, her brother Ram Naresh and grandmother Ramshri with bricks and dandas. Thereafter, they took away four boxes, one attaichi, besides clothes, utensils and Rs. 5,000/- in cash, jewellery of gold and silver. They also snatched earrings of informant and her grandmother.

4. Incident was reported by informant at concerned police station on 19.7.2001 at 8:30 a.m., whereupon investigation was made by police. Ultimately, police submitted final report No. 57 of 2001 on 21.9.2001. Final report, mentions that stolen articles were found in a field and on investigation accused named in the F.I.R. were not found involved in the incident. After submission of final report by police on 21.1.2001 before Trial Court, complainant appeared and filed protest petition alongwith affidavits of some persons. On consideration of affidavits and injury reports filed alongwith protest petition, Trial Court took cognizance of the offence under Section 394 IPC against accused revisionists and issued non-bailable warrant against them fixing 28.8.2004 for appearance in Court.

5. Learned counsel for revisionists contended that alongwith protest petition some affidavits were filed, which have been considered by learned Special Judge (D.A.A.), Agra and thereafter final report was rejected. This exercise and procedure followed by Trial Court is illegal. Submission is that no external evidence can be taken into account by Trial Court for accepting or rejecting final report. Reliance is placed on Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 and Harkesh and others v. State of U.P. and another, 2001 (43) ACC 720.

6. Learned A.G.A., on the contrary, submitted that it is open to Magistrate to accept or not, final report submitted by Police, and Magistrate can examine the matter himself. If it finds expedient on the basis of material available, can summon the accused. He said that in the present case, Special Judge (D.A.A.) has recorded his opinion on the basis of affidavits placed before him alongwith Protest Petition by complainant, and, therefore, it cannot be said that Special Judge (D.A.A.) has not applied his mind. He also contended that there is no bar for Special Judge (D.A.A.) to consider material placed before him by complainant alongwith Protest Petition.

7. I have heard learned counsels for parties and perused the record.

8. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is reproduced as under:

“190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate ma