P.S.Sahay, J.:-

(1) The point raised in this case is of great importance and arises in most of the criminal cases before the magistrate empowered to take cognizance and it wm be my earnest endeavour to answer the point in a clear cut manner so that the subordinate courts may not have any difficulty in deciding the matter in accordance with law.

(2) In order to appreciate the point it will be necessary to state the facts. On 10th december, 1979 opposite party no. 1 filed a petition of complaint before the chief judicial magistrate alleging offences against the petitioners under sections 147,323,427 and 379 of the indian penal code. On receipt of the complaint the learned magistrate sent it to the police to register a case under section 156 sub - clause (3) of the code of criminal procedure which gave rise to manigachi police station case no. 74 (12) 1979 and investigation was taken up by the police. On 23rd february, 1980 opposite party no. 1 also filed a protest petition against the petitioners and making certain allegations against the investigating officer and it may be mentioned that twelve witnesses were also named and section 395 was further added in the aforesaid petition. After investigation final report was submitted by the police on 11th august, 1980 that the case was a false one and civil dispute was involved; a copy of the aforesaid report is annexure - 1. On the same date the learned chief judicial magistrate accepted the final report and discharged the petitioners. On 12th october, 1980 two days after the disposal of the final report the learned chief judicial magistrate considered the protest petition filed on 23rd february, 1980, examined the complainant on solemn affirmation and transferred the case to the file of sri r. N. P. Sinha, sub divisional judicial magistrate, under section in sub - clause (2) of the code of criminal procedure for disposal. Two witnesses were examined by him and by order dated 19th june, 1981 cognizance has been taken against the petitioners under sections 147, 323,427 and 379 of the indian penal code. Being aggrieved by the aforesaid order the petitioners have moved this court.

(3) Learned counsel appearing on behalf of the petitioners has submitted that once the final report having been accepted on 14th august, 1980 the order became final and the learned magistrate had no jurisdiction to deal with the protest petition and re - open the case. He has submitted that the aggrieved party meaning thereby opposite party no. 1 should have moved the superior court and the learned magistrate had no jurisdiction to pass any fresh order which will amount to recalling his previous order, for which he had no power under the code. Next it has been contended that section 395 of the indian penal code was also of the offence mentioned in the protest petition and in that view of the matter, the enquiry, if any, should have been conducted by the chief judicial magistrate himself and he had no power to transfer the case to another magistrate as he has done in the instant case. In support of his contentions reliance has been placed on some decisions which i propose to consider subsequently.

(4) It will be proper, at this stage, to refer to the various provisions of the code of criminal procedure (hereinafter referred to as the code) which are relevant for this case. Chapter xiv of the code deals with the conditions requisite for initiation of proceedings and section 190 of the code, which is relevant, reads as follows: 190. Cognizance of offences by magistrates. - (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 may empower any magistrate of the second class to take cognizance under sub - section (i) of such offences as are within his competence to inquire into or try. Thus, when a complaint is filed the magistrate has three options. He can examine the complainant on solemn affirmation and take cognizance and summon the accused persons mentioned in the petition straightway provided he is satisfied that there arc sufficient ground for proceeding against them. The second option is that he may postpone the issue of process, direct enquiry by himself or by any other person or even investigation by the police. On receipt of the enquiry report if he is satisfied that a prima facie case is made out he can summon the accused. If no prima facie case is made out then the complaint has to be dismissed. Besides these there is another alternative that is to order investigation by the police under section 156, sub - clause (3) of the code and that can be done only before taking cognizance and on receipt of the report can issue process or discharge or he may further order reinvestigation. It is also made clear that even if final report is submitted he can differ from the same and take cognizance. Section 156 of the code deals with the powers of the police officer to investigate cognizable case and sub - section (3) , which is relevant, reads as follows: 157 (3). Any magistrate empowered under section 190 may order such an investigation as above - mentioned. After the investigation is completed by the police a report is submitted as required under section 173 of the code which may be charge - sheet or final report and that has to be considered by the magistrate and who is empowered to pass the final order is accordance with law.

(5) What will be the procedure if the police submits final form and there is a protest petition filed by the informant during the pendency of the investigation which is kept pending and has ordered to be considered after the final from is received, that is the point to be decided in this case. In other words, can be magistrate, after accepting the final report and discharging the accused persons, has the power to deal with the protest petition, hold enquiry, examine witnesses and then issue process against the accused persons or even direct an enquiry by any other person or investigation by the police. The answer must be in the affirmative. The concept, which in my opinion creates all the confusion that when the complaint is filed and is sent to the police for investigation under section 156 of the code or a protest petition is filed during the pendency of the police investigation and is kept pending because the magistrate refused to act on the petition and, therefore, that petition disappears is totally incorrect. In my considered opinion it does not amount to total effacement of the complaint and the magistrate will be perfectly justified to act under sections 202, 203 and 204 of the code. I am completely supported by the decision of the supreme court in the case of h. S. Bains v. The state (union territory of chandigarh) , where on receipt of the complaint the magistrate sent it to the police under section sub - clause (3) and on receipt of the final report differed from the same and took cognizance. Their lordships have held as follows: the mere fact that he had earlier ordered an investigation under section 15 sub - clause (4) and received a report under section 173 will not have the effect of total effacement of the complaint and, therefore, the magistrate will not be barred from proceeding under sections 200, 202 and 204. Thus, a magistrate who on receipt of a complaint, orders an investigation under section 155 (3) and receives a police report under section 173 (1) , may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under section 190 (1) (b) on the basis of the police report and issue process: this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. In the case of tula ram v. Kishore singh the complaint was sent to the police for investigation under section 156 sub - clause (3) and on receipt of the final report the magistrate issued notice to the complainant and thereafter recorded his statement and the statement of other witnesses and issued processes which was challenged and it was held that the magistrate was perfectly justified in doing so. The relevant portion from the judgment may be usefully quoted: where a magistrate chooses to take cognizance he can adopt any of the following conditions: (a) he can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of section 200 and record the evidence of the complaint or his witnesses. (b) the magistrate can postpone the issue of process and direct an enquiry by himself. (c) the magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. In case the magistrate after considering the statement of the complaint and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are, sufficient grounds for proceeding he can dismiss the complaint. Where a magistrate orders investigation by the police before taking cognizance under section 156 (3) of the code and receives the report thereupon he can act on the report and discharge the accused straightway issue process against the accused or apply his mind to the complaint filed before him and take - action under section 190 as described above.

(6) In the case of smt. Nagawwa v. Veeranna shivalingappa konjalgi and others which was a case primarily relating to the ambit and scope of sections 202, 204 of the code, magistrate acted on the complaint against some reasons though after police investigation charge sheet was submitted and cognizance had already been taken and the matter was pending and this also supports the view that the magistrate can act on a protest petition which is in the nature of a complaint against those who are not sent up by the police for trial. This also answers the point raised by the learned counsel appearing on behalf of the petitioners that the court having once passed the order on a police report cannot deal the matter again and it will amount to recalling the order which is incorrect and, therefore, the case of bindeshwari prasad singh v. Kali singh has absolutely no application to the facts of the instant case. It is none of those cases where the magistrate after passing the order becomes functus officio and his order can only be interfered with by the superior courts. Our attention has also been drawn by the learned counsel appearing on behalf of the state in an unreported decision of, this court in the case of prem nath mishra v. The state of bihar where a similar point arose for consideration and their lordships have held that so far the complaint case is concerned, the court concerned has to apply its mind to the materials produced in connection with the said complaint case. The court has not to refer to the police papers for the purposes of ascertaining as to whether prima facie case is disclosed against the accused persons or not. Sub - section (1) of section 210 of the code enables the magistrate to proceed with the petition of complaint even in the cases where cognizance has been taken on the police report. Although in respect of that very occurrence a police case might have been registered earlier. Learned counsel appearing on behalf of the petitioners has placed reliance on a bench decision of this court in the case of kanhaiya lal alias kanhaiya lal verma v. The state where a final report was submitted by the police which was accepted on 25th july, 1977 and thereafter a protest petition in the nature of complaint was filed on 3rd august, 1977 without any fresh material and it was rightly held by their lordships that the magistrate has no power to take cognizance on the complaint which is not the position in the instant case. In the case of bhubneshwar prasad sinha v. The state of bihar also after the acceptance of final form a protest petition was filed and it was also held that without any fresh material the order taking cognizance was bad. This decision does no t help the petitioners. Our attention has also been drawn to an unreported decision of a learned single judge in the case of bindeshwari singh and others v. State where the protest petition was kept pending and after the final form was accepted the accused persons were discharged and thereafter the petition of complaint was considered and cognizance was taken and process was issued against the accused persons which was quashed by this court. His lordship, after considering the case of tula ram (supra) and bindeshwari singh (supra) , has held as follows: reading the decisions together i have no hesitation in holding that in the situation that emerges is that the learned magistrate could only proceed on the protest petition if he had not accepted the final report submitted by the police. Further it has been observed as follows: having discharged the petitioners the learned magistrate was wrong in proceeding to summon them on the basis of the protest petition. Since protest petition was already on the record when the final form was received, he should have refrained on passing any order on the final form if he missed to proceed with the complaint or he should have considered the final form and could have either discharge the accused or summon them straightway for trial. He could not have done both as he has done in this case. On this view the impugned order is entirely without jurisdiction and is fit to be quashed.

(7) I am unable to subscribe to this view which is in direct conflict with the decision of the supreme court which has been discussed earlier. If that position is accepted then the magistrate has to consider the filial report also at the time of disposing the protest petition and in that event the court is bound to refer to some of the materials referred to in the case diary which will certainly have some bearing in the mind of the court while disposing of the protest petition. This will be an extraneous matter as held by this court in the case of ram kumar pandey v. The state of bihar. Again if the final report is considered after this disposal of the protest petition then it can be very well argued that the magistrate had already expressed his mind and, therefore, the acceptance on the final form was a mere formality and without the application of the judicial mind. In my considered opinion, therefore, the two proceedings are separate and has to be dealt with separately and in that view of the matter, that case has not been correctly decided. Thus, lam satisfied that the magistrate was quite competent to deal with the protest petition which was filed on 23rd february, 1980 and was kept pending. The other submission of the learned counsel for the petitioners that section 395 of the indian penal code was also mentioned in the protest petition and, therefore, the magistrate could not have transferred it under section 192 and should have dealt with himself. This submission is also devoid of any - substance and must be rejected. Simply by mentioning section 395 of the indian penal code where the allegations were similar to the original petition of complaint the jurisdiction of the magistrate cannot be ousted. It is well settled that it is the substance of the allegations which has to be seen in order to ascertain was offence have been made out and, therefore, the sections mentioned will not at all be relevant. Of course, in course of trial if it is found that a graver offence is committed it will always be open to the court concerned to commit the accused persons to stand their trial before the court of sessions.

(8) Thus, on a careful consideration of the points, which have been raised in this application, and after hearing the learned counsel for the parties and after carefully going through the decisions cited at the bar it must be held; (1) when the complaint is sent to the police under section 156 (3) and in the meantime a protest petition is filed or in course of police investigation a protest petition is filed and is kept pending, the magistrate after disposing of the case on receipt of the police report, is fully competent to deal with the complaint. It is not at all necessary to keep the matter ending on receipt of the police report and pass the order on the protest petition and the police report together for the reasons mentioned above; (2) of a protest petition in the nature of complaint is filed after the final form is accepted then it must he some fresh materials or it must be shown that the previous order was passed on incomplete record or a misunderstanding on the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, be brought on the record of the previous proceeding as held in the case of pranathan nath talukdar v. Saroj ranjan. There is no merit in this application and it is, accordingly, dismissed. The trial may, however, be expedited.

(9) Nazir ahmad, 3. - i agree. Application dismissed.