The Magistrate is not bound to accept the police report and may decide to take cognizance of the offence mentioned in the complaint. The omission to file a list of witnesses will not vitiate the proceedings if the purpose of S. 204(2) is otherwise served.

On 7-2-1981 the first respondent filed a complaint before the judicial Magistrate of First Class, Theliparamba alleging that the five petitioners formed themselves into an unlawful assembly and committed criminal trespass, theft and other offences. The Magistrate, on receipt of the complaint, passed the following order : "Forwarded to the S.I. of Police, Irikur, for investigation and for report under S. 156(3) Cr.P.C. Call on 23-2-1981". Crime No. 8 of 1981 was registered on the basis of the complaint. The Police, after investigation, referred the case as false. A report to that effect was presented before court on 13-4-1981. The Magistrate, on receipt of the report, posted the case for taking the sworn statement of the complainant. The sworn statement was recorded on 7-5-1981 and the case was being proceeded with as per the Procedure in Chap, XV of Criminal P.C. (hereinafter referred to as the Code). The present petition filed under S. 482 of the Code is for quashing the proceedings initiated by the Magistrate after receipt of the refer report. The stand taken by the petitioners is that once the court sent the case for investigation to the police under S. 153(3) of the code, there is a merger of the complaint with the investigation and the court is bound to accept the refer report which is the result of investigation and put an end to the proceedings. Further action by way of cognizance of the offence is to be taken by the Magistrate only in case a fresh complaint, is filed on the same facts, challenging the refer report.

2. The point to be considered is whether the Magistrate can take cognizance of an offence after the police filed a refer report on a complaint sent for investigation under S. 156(3). S. 190 of the Code deals with powers of the Magistrate to take cognizance of an offence. Under that section the Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence (b) upon a police report of such fact and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Under S. 156(3), a Magistrate empowered under S. 190 may order the investigation of any complaint by the police. If any such case is sent for investigation, the police officer investigating the case should send a final report as provided in S. 173 of the Code. The argument put forward by the petitioner is that if the final report is to the effect that no offence has been committed the court should treat the matter as closed and should not to fall back upon the complaint and proceed with it (as provided in Chap. XV of the Code) except in cases where a fresh complaint on identical facts is received. No doubt the practice followed in most of the courts is to close the matter on the basis of the refer report and to take it up afresh if and when a protest complaint is filed. The practice has its basis on the assumption that when the police finds the case to be false and reports accordingly, the Magistrate is not in legal seisin of anything. He gets seisin of the matter again only if a fresh complaint is filed. (See, Akshoy Kumar v. Jogesh Chandra, AIR 1936 Cal 76) : (1956 Cri LJ 505 (2)) There is however no provision in the Code which prescribes the above procedure or debars the Magistrate from taking further action. Since the word used in S. 190 is "may", it is no doubt open to the Magistrate to decline to take cognizance of an offence if after investigation the police reports the case as false. That does not mean that it is incumbent on the Magistrate to accept the Police report and refuse to take cognizance of the offence disclosed in the complaint.

3. The Code does not define the expression "take cognizance". But that expression has been judicially interpreted in a series of decisions. A Magistrate is said to have taken cognizance of an offence when he takes judicial notice of the offence and decides to deal with it h