JUDGMENT :

DEEPAK ROSHAN, J.

Heard learned counsel for the parties.

2. This revision application is directed against the order dated 02.06.2007 passed by learned Chief Judicial Magistrate, Deoghar in G.R. Case No. 436 of 2005 corresponding to T.R. No. 443 of 2007; arising out of Deoghar P.S. Case No. 147/2005 dated 12.06.2005 under Sections 341, 342, 323, 348, 352, 379 and 386/34 IPC; whereby the petition dated 23.03.2007 filed under section 258 Cr. P.C. has been rejected by the learned Chief Judicial Magistrate, Deoghar.

3. The brief facts of the case are that the petitioners were made accused on the basis of a written report submitted by one Sanjay Kumar Sinha-0.P. No. 2 before the Officer In-charge, Town Police Station, Deoghar for the alleged offence u/s 341, 342, 323, 348, 352, 379 & 386/34 of the Penal Code, 1860 against which a petition u/s 258 Cr. P.C. was filed which was rejected by the learned Chief Judicial Magistrate Deoghar.

4. Further fact is that a case being Deoghar P.S. Case No. 147/2005 dated 12.06.2005 u/s 341, 342, 323, 348, 352, 379, 386/34 of the IPC was registered as State v. Ashok Kumar Singh The date and time of occurrence was 12.06.2005 at 9 : 30AM.

5. After investigation, a final report being Final Report NO. 86/2006 dated 06.03.2006 was submitted as ‘false’. At this stage it is pertinent to mention here that the informant apprehending that since accused persons were powerful as such, police is not taking action against them so he also filed a protest-cum-complaint petition on 19.07.2005.

6. Further fact of the case is that the final form was received in the office of the Court on 23.03.2006. Thereafter, notice to the informant was issued fixing the date as 28.04.2006. On 28.04.2006, the P.O. was transferred and therefore, again date was fixed on 15.06.2006 by issuing notice to the Informant. On 15.06.2006, the Informant was absent. On 20.07.2006 the Informant was present but the date was fixed on 30.07.2006 for hearing on protest petition. On 30.07.2006/31.07.2006 the record was placed for hearing, the Informant was in appearance, and the hearing was made on protest petition and the case was fixed for 11.08.2006 for orders. On 11.08.2006 the learned Chief Judicial Magistrate took cognizance of the offence u/s 323 and 342 of the IPC by cancelling the jurisdiction of Gram panchayat, issuing process against the accused persons.

7. Learned counsel for the petitioners submits that the legal question falls for consideration before this Court is that as to what is the power vested with the Court to take cognizance of the offence under the Criminal Procedure Code, 1973. Learned counsel submits that in the instant case, after the investigation, police had submitted the final form which was accepted by the learned trial Court, however, the Court has taken cognizance on the contents of the case diary which is against the procedure of Cr. P.C. and referred to chapter XIV of Cr. P.C. For brevity, relevant paragraph is quoted hereinbelow: –

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

190. Cognizance of offences by Magistrates - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence -

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

(b) upon a police report of such facts;

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

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

8. Learned counsel contended that a case can be said to be “instituted” in a Court only when the Court takes cognizance of the offence alleged therein. An examination of the provisions of Section 190 makes it clear that a case is instituted in the Co