A Magistrate, even after accepting the final report filed by the police, can still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact.

S.S.SANDHWALIA and S.N.JHA JJ.

1. Can a Magistrate, even after accepting the final report filed by the police, still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact-s the somewhat tangled common question of law in this set of four cases necessitating this reference to the Division Bench.

2. As is manifest, the issue aforesaid being pristinely legal, the facts would pale into relative insignificance. These may, therefore, be noticed with relative brevity from Criminal Miscellaneous No. 4865 of 1980Munilal Thakur and others V/s. Nawal Kishote Thakur and another. A first information report alleging offences under Sections 448, 323 and 436 of the Indian Penal Code was recorded against the petitioners in police station Sikti. After investigation, the police submitted a final report in the court of the Magistrate on the 27th of March, 1979 with an endorsement that the case was false. It is, however, common ground that much earlier a protest petition had been filed by the informant complaint on the 8th of December, 1978 in the court. After the receipt of the final report, the learned Magistrate accepted the same on the 3rd of January, 1980. Later, however, the informant complainant was examined on solemn affirmation on the 28th of January, 1980 and the protest-cum-complaint petition was also inquired into under Section 202 of the Code of Criminal Procedure (hereinafter referred to as the Code) and six witnesses also examined, on behalf of the complainant. By a detailed order dated the 29th of August, 1980 the learned Additional Chief Judicial Magistrate opined that sufficient ground for proceeding against the petitioners for alleged offences under Sections 147, 148, 149, 323 and 436 I. P. C. had been made out and, accordingly, he took cognizance thereof and issued processes against the petitioners. Aggrieved thereby, the present criminal petition was preferred challenging the cognizance itself.

3. These cases originally came up separately before two learned single Judge of this Court before whom firm reliance was placed on, Chandra Shekhar Chaudhary and others V/s. Raj Kishore Jha and another. (1982 Bihar Law Judgments 627) for contending that even after the acceptance of a final report, the Magistrate was not in any way debarred from taking cognizance on the complaint-cum-protest petition. alleging similar facts and circumstances. Expressing some doubts about the view in Chandra Shekhar Chaudharys case and noticing a continuing conflict of precedents in the Court, the matter was referred to a larger Bench.

4. At the very outset. I may perhaps notice that the legal issue before us already suffers from such a plethora of precedents that it is unnecessary and, indeed, it would be wasteful to now launch off a dissertation on first principles or on the language of any of the relevant sections of the Code of Criminal Procedure. This would be the more so as I am inclined to the view that the matter is now concluded by a recent binding precedent.

5. Now advertng to the case law of the final Court itself, one need not delve beyond Abhinandan Jha and others V/s. Dinesh Mishra, (AIR 1968 Supreme Court 117). That was a case from this Court wherein their Lordships set at rest the then reging controversy on the point as to whether the Magistrate could direct the police to submit a charge sheet when the police, after investigation into a cognizable offence, has submitted a final report under Section 173 (of the Code). While answering that question in the negative by holding that the Magistrate had no such power to compel the filing of a charge sheet, their Lordships were, however, careful in pointing out that the Magistrates power to himself take cognizance of the offence was in no way fettered. It was observed as under :

"There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumsta