Cognizance taken by a Magistrate on a police report, even if it is a final report, will be under Section 190(1)(b) Cr. P. C. and the procedure for police chalan cases is to be observed.

( 1 ) THE applicants have been summoned under Sections 147, 148, 323, 324 and 307 I. P. C. as per order dt. 19. 2. 1983, Annexure 4. It would appear that the police submitted a final report in this case. A protest petition was preferred and the Magistrate then passed the following order:

Perused case diaries, application and other papers. In the cross case the accused have been challaned. Prima facie offences Under Section 147/148/324/323/307 IPC are made out against accused Qasim @ Fausi, Sukha Asghar, Mohd. Amin, Kamil, Hayat, Liyaqat, Mishtaq. Aalim, Amir, Ahmad, Hanif, Shuukat, Popat Jamil, Shakil Ahmad and Zafar and there are sufficient grounds to proceed against them. Issue warrants of arrest against them. Fix 24. 3. 1983. sd/ MQ. Siddiqi J. M. I. 19. 2. 1983.

( 2 ) IT is urged that the order is illegal and without jurisdiction and is a of 4 non-speaking order and was based mechanically and the Magistrate was bound lo follow the procedure for a complaint case which the Magistrate has failed to do and there was no provision for issuing warrant and the Magistrate could only direct a further investigation and police was right in submitting a final report. It was also stated that there is a cross case initiated at the instance of some of the opposite parties with a cross version in which charge sheet was submitted.

( 3 ) THIS Court cannot enter into the question of facts which are to be considered by the Magistrate. Simply because there is a cross case also, any prosecution would not be barred. It is for the court to decide during trial the merits of cross cases. The main argument advanced is that the protest petition falls within the definition of Section 2 (d) of the Cr. P. C. and on the authority of the case of Abhinandan Jha v. Dinesh Misra the procedure under Sections 200 and 202 Cr. P. C. should have been followed. It is further urged that in the case reported in also the same view was taken. A number of pronouncements of other, High Courts were cited but this Court will be guided by the Supreme Court pronouncement as well as the earlier pronouncements of this Court.

( 4 ) A doubt was created concerning the pronouncement in Abhinandan Jhas case (supra) whether the cognizance taken by the Magistrate falls under Section 190 (1) Cr. P. C. This position has been clarified in the case of H. Section Bains v. State laying down that actually the case of Abhinandan Jha (supra) refers to Sub-clause (b) and not Sub-clause (c) of Section 190 Cr. P. C. and when a court takes cognizance on a police report, even if it is final report cognizance will be under Section 190 (b) Cr. P. C. and the procedure for police Chalan cases is to be observed. This is latest pronouncement dealing with the matter.

( 5 ) I have quoted the order of the Magistrate. A perusal of that order would go to show that the Magistrate did exercise his mind and while exercising such mind materials in the case diary, which is submitted with the final report, were taken into consideration and weighed with the court. True that the Magistrate has observed that he perused the case diary, the application and other papers. I ascertained during arguments. There were no papers furnished with the protest petition so whatever papers were perused were those in the case diary when of 4 produced at the stage of investigation. As regards application it would be found that apart from the protest petition there were two applications preferred during investigation as a part of the case diary and the Magistrate may have perused any one of them. Even if for arguments sake it is assumed that the Magistrate perused protest petition it would not in any way vitiate the proceedings for adopting any wrong procedure. A protest petition may simply say that the case diary itself contains sufficient materials, disclosing a prima facie case and the police have wrongly submitted a final report instead of charge-sheet. It is not unusual for any party who gets aware that any final