S.S.SANDHAWALIA, J.

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? Is 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 facts would pale into relative insignificance. These may, therefore, be noticed with relative brevity from Criminal Misc. No.4865 of 1980 Munilal Thakur V/s. Naval Kishore Thakur. A first information report alleging offences under Ss.448, 323 and 436 of the Penal Code was recorded against the petitioners in Police station section. After investigation, the police submitted a final report to the court of the Magistrate on 27th March 1979 with an endorsement that the case was false. It is however common ground that much earlier a protest petition has been filed by the informant complainant on 8th Dec. 1978 in the court. After the receipt of the final report, the learned Magistrate accepted the same on 3rd Jan. 1980. Later however, the informant complainant was examined on solemn affirmation on 28th Jan. 1980 and the protest-cum-complaint petition was also inquired into under S.202 of the Cr.P.C. (hereinafter referred to as the Code) and six witnesses were also examined, on behalf of the complainant. By a detailed order dated 29th Aug. 1980 the learned Additional Chief Judicial Magistrate opined that sufficient ground for proceeding against the petitioners for alleged offences under Ss.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 Judges of this Court before whom firm reliance was placed on Chandra Shekhar Chaudhary V/s. Raj Kishore Jha 1982 BLJ 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 adverting to the case law of the final Court itself, one need not delve beyond Abdhinandan Jha V/s. Dinesh Mishra AIR 1968 SC 117 : (1968 Cri LJ 97). That was a case from this Court wherein their Lordships set at rest the then raging 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 S.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 (Para 7) :

"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 circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under S.190(1)(c) of the Code. That provi