The central legal point established in the judgment is the judicial discretion of the Magistrate in accepting or rejecting the final report under Section 173 of the Code of Criminal Procedure, emphasizing that the Magistrate is not bound to accept the opinion of the police.

JUDGMENT :

The petitioner has challenged the order dated 21.03.2016 by which cognizance of the offence under sections 465, 466, 467, 477 read with section 34 of Indian Penal Code has been taken. By the same order, Chandra Bhushan Ojha and Smt. Kiran Devi @ Singh were directed to appear before the Court on 09.05.2016 - summons are issued to the accused.

2. On the basis of a written report vide letter dated 19.09.2005 of District Additional Registrar, Deoghar a First Information Report was lodged against Chandra Bhushan Ojha and Smt. Kiran Devi @ Singh vide Deoghar Town P.S Case No. 292 of 2005. By an order dated 12.12.2013 the learned Chief Judicial Magistrate, Deoghar took cognizance of the offence and ordered summons against them. Aggrieved by that order, Smt. Kiran Devi @ Singh approached Sessions Court in Criminal Revision No. 01 of 2014. The order taking cognizance dated 12.12.2013 was set-aside by Sessions Court vide order dated 08.08.2014. The main reason why Sessions Court interfered with the order dated 12.12.2013 appears to be a misconception that the Magistrate can take cognizance only upon a protest petition duly registered.

3. In the order dated 08.08.2014 the learned Sessions Judge has observed as under:

"The Final Form dated 31.08.2013 was submitted in the lower Court on 30.09.2013 whereafter the notice was issued to the informant on 31.10.2013. This petitioner filed a petition with a request to accept the Final Form which was rejected. On 29.11.2013 the informant appeared and a protest petition was filed. After hearing the case, the record was fixed for order on the point of cognizance and thereafter the impugned order has been passed. It further appears that on the same day i.e. 12.12.2013 the learned C.J.M accepted the Final Form by making endorsement to this effect in the front page of Final Form itself. In the impugned order also the learned C.J.M, although have observed that prima facie case is made out against the accused person, accepted the Final Form and thereafter proceeded to take cognizance. It is settled law that once the Magistrate accepts the Final Form then the protest petition has to be registered as a complaint case and proceeded accordingly. Before acceptance the Magistrate is at liberty to differ with the opinion of the 1.0 and can take cognizance of the offence ignoring the conclusion arrived at by the Investigating Officer and independently applying her mind to the facts emerging from the investigation. It is within the discretion of the learned CJM to peruse the case diary and form her independent opinion and take cognizance of the offence, if she thinks fit, in exercise of powers u/s 190 (1) (b) Cr.P.C and direct the issue of process to the accused person. In such circumstance, a Magistrate is not bound to follow procedure laid down in Sections 200 and 202 Cr.P.C. The allegation of the petitioner is that this false case has been instituted at the behest of Sujit Jha. I consider that such allegation of malafide is a question of fact which can be decided during trial only and cannot be considered in this revision. I am also not convinced with the objection with regard to limitation as some of the Sections mentioned in the FIR and in the impugned order are punishable with more than 3 years.

The impugned order is not clear as to how the learned C.J.M, has proceeded to take cognizance. It cannot be said that by mistake the learned C.J.M has endorsed regarding acceptance of Final Form as because such endorsement in the impugned order is written personally by a Presiding Officer after due application of mind and similar endorsement is also made in the copy of Final Form itself on 12.12.2013. If that was the case then the matter comes to an end. If on the basis of protest petition the learned Court forms an independent opinion of taking cognizance then the same has to be registered as a complaint case. In such view of matter, the impugned order dated 12.12.2013 is not tenable and is set-aside. The mat