Dave, J.—This reference comes on the report of the learned Sessions Judge, Jodhpur, dated the 16th of the August 1955.

2. The facts giving rise to it are that four persons namely Lumbaram, Kheraj, Pitha and Ghewaria were arrested by the Police on 2nd of May 1955 because they were suspected of committing the murder or one Nawlaram Jat on the previous day. After investigation, the Police challaned three of them. Against the fourth namely Lumbaram it was reported that the evidence against him was not sufficient for his prosecution and, therefore, he should be discharged. This negative, report against Lumbaram was rejected by First Class Magistrate, Jodhpur on the ground that on evidence was recorded till then in the court. He ordered that the accused would stand his trial along with others. Against this order, Lumbaram filed an application in revision in the court of Sessions Judge, Jodhpur. The learned sessions Judge has expressed a doubt if the procedure adopted by the Magistrate is correct. He has requested this court to lay down the procedure to be followed in such cases.

3. Learned counsel for the petitioner has urged that the Magistrate should have either accepted the police report or rejected it but he should not have taken cognizance of the offence. It is contended that the magistrate could take contended on the Police report only if the police had challaned the accused and made it clear that the facts found against him constituted an offence. According to learned counsel, the Magistrate could not take cognizance on a negative report of the Police in any case. In support of his contention he has referred to Harbir Singh vs. The State (1) and Mt. Ido vs. Gainda Singh.

4. Learned Government Advocate on the other hand has urged that the Magistrate could take cognizance even on the negative report of the police officer if it were found that the facts stated therein constituted an offence. It is however conceded by him that the reasons given by the Magistrate are not correct. The question for determination is whether a Magistrate can take cognizance of an offence when the police makes a report under S. 173 Cr.P.C. that the offence is not made out against the accused. It would be proper to reproduce here sec. 190 of the Criminal Procedure Code according to which cognizance of offence may be taken by a Magistrate. It runs as follows:—

"190 (1) Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence.

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

5. It is clear from the provisions of the above section that it lays down three ways in which the cognizance of an offence may be taken by a Magistrate. It can be done either on (1) receiving a complaint of facts constituting an offence or (2) on a report in writing of such facts made by a police officer or (3) upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed. Learned counsel for the accused has urged that under clause(b) of the said section, a Magistrate may take cognizance only if a report is made by a police officer that the accused has committed an offence. As mentioned above, he relies upon the two decisions of the Pepsu High Court referred above. In the first case, the police had made a report that no offence against the accused had been made out. The Magistrate, however, recorded the statement of a person at whose instance the criminal proceedings were started. He also recorded some evidence and so it was contended on behalf of the accused that the procedure adopted by the Magistrate was illegal. Learned

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