"Where cognizance has been taken under S. 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-sec. (2) of S. 202, Cr.P.C. shall have no application. Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :- (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under S. 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under S. 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. For forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C."
