UDAY SINHA, J.

1. These five miscellaneous applications under S. 482 of the Cr. P. C., 1973 (hereinafter referred to as the Code) have been heard together by this Special Bench, as a common question of law is involved in all these applications. In Kailash Pandey V/s. State of Bihar (1977 BBCJ 722) a Division Bench of this Court held that after the enactment of the Cr. P. C., 1973 a Magistrate has no jurisdiction to differ with the conclusions of the police contained in a police report, if the police did not feel that any offence had been committed or if it did not recommend a particular accused being put on trial. B. P. Sinha, J. not finding himself in agreement with the law laid down in that case directed Criminal Miscellaneous No. 1787 of 1977 and Criminal Miscellaneous No. 1803 of 1977 to be placed before a Division Bench. The other applications thereafter followed suit and were directed to be placed before a Division Bench. The Hon ble Chief Justice, finding that three learned Judges of this Court had doubted the correctness of the law laid down in Kailash Pandeys case (supra), constituted the present Special Bench in order to set the law at rest in regard to the powers of a Magistrate. The question involved in these applications will be of wide importance for Magistrates in general in regard to their powers while considering police reports submitted in terms of S. 173 of the Code.

2. The point canvassed at the Bar is that when police submits a report under S. 173 of the Code after forming the conclusion that no offence had been committed or when it does not send any particular accused for trial, a Magistrate is bound to accept it as such. A Magistrate is obliged on receiving such report to accept the conclusion of the police. The only two options before a Magistrate on receiving such a report (described as Final Report in this State) is to accept it or order further investigation. According to learned counsel for the petitioners, a Magistrate could take cognizance of any offence and issue process thereafter only if a complaint was filed. Therefore, cognizance could be taken and process issued only in a case instituted upon a complaint, but not on the basis of the final report submitted by the police. Learned counsel for petitioners, for the above propositions, have drawn heavily upon Abhinandan Jhas case, 1968 0 CrLJ 97.

According to counsel for the petitioners, Abhinandan Jhas case laid down that when a Final Report (so called loosely in this State) was submitted, a Magistrate could take cognizance upon his own suspicion in terms of S. 190 (1) (c) of the Code. But as S. 190 (1) (c) of the Cr. P. C., 1898 has been amended by the Code of 1973 deleting the words "or suspicion" from that section, it necessarily followed, according to learned counsel for the petitioners, that Abhinandan Jhas case in the changed legal set up must be read as laying down by implication that a Magistrate has no power to take cognizance in terms of S. 190 (1) (b), if the police is of the view that no offence had been committed or that there is no evidence justifying putting a particular accused on trial. The proposition enunciated by learned counsel for the petitioners, which found favour in Kailash Pandeys case (supra) is for consideration before this Special Bench.

3. Before proceeding to consider the submissions in support of the applications, it would be appropriate to state in brief the relevant facts, for deciding the point in issue, in each of these applications. Criminal Miscellaneous No. 4871 of 1976. - On 27-5-1976 on the basis of a Fardbeyan given before the police Wazirganj P. S. Case No. 17 (5) 76 was instituted in regard to commission of offences under Ss. 147, 148, 149 and 302 of the Indian Penal Code. The police investigated into the case and submitted a police report recommending Kauleshwar Manjhi and Moti Manjhi being put on trial. The police did not recommend placing the petitioners on trial in that case. The police repo