JUDGMENT 1. This application by Sardar Dilip Singh under sections 439 and 440 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') has been filed against an order dated 17.7.1976 passed by the Sessions Judge, Siwan, refusing bail to the petitioner. The application of the petitioner had earlier been placed before the learned Single Judge, who by his order dated 24.9.1976 was pleased to refer it to the Division Bench. Thus how this case has been placed before us. 2. Learned counsel for the petitioner submitted that the learned Sessions Judge ought to have granted the petitioner bail under the provision of section 167 (2) of the Code. In the instant case he pointed out that the petitioner was arrested on the 25th April, 1976. According to the petitioner as the investigation itself was incomplete and, therefore, the police submitted preliminary chargesheet on the 24th June, 1976, on the basis of which on the same date the Chief Judicial Magistrate, Siwan is purported to have taken cognizance, the relevant portion of which reads thus:– "Charge sheet received u/s 364 and 302 I.P.C. Perused, cognizance taken of the offences u/s 364 and 302 I.P.C. Let the Case be made over to the file of Sri G.S. Poddar, Judicial Magistrate for commitment according to law. The transferee magistrate should also dispose of the pending bail petition, if moved on date fixed." 3. Learned counsel for the petitioner has raised two points for consideration by this court (1) that the chargesheet itself, having mentioned that it is preliminary chargesheet, goes to show that the investigation was not completed and, therefore, according to him, it was a pretence of completing chargesheet within 60 days in order to prevent the petitioner from utilising the privileges granted to him under section 167 (2) of the Code and (ii) that the cognizance which the Chief Judicial Magistrate is alleged to have taken on the 24th June, 1976, is not a cognizance at all as required under law. 4. It will be convenient to deal with point no. (1) first. In our opinion, simply because in the chargesheet the head in the 'preliminary chargesheet' it cannot be held that it does not contain all the materials necessary in a chargesheet as contemplated under section 173 of the Code. 4. It will be convenient to deal with point no. (1) first. In our opinion, simply because in the chargesheet the head in the 'preliminary chargesheet' it cannot be held that it does not contain all the materials necessary in a chargesheet as contemplated under section 173 of the Code. It is well settled that the form does not matter, it is the substance which matters and if the charge sheet contained materials, it was up to the Chief Judicial Magistrate to be satisfied as to whether the materials were sufficient or not. In the instant case, as mentioned earlier, the Chief Judicial Magistrate was satisfied and on the basis of that very chargesheet he took cognizance on the 24th June, 1976. Simply because the chargesheet is headed as 'preliminary' it would not be considered as bad and the sub-stance and not form will matter has already been decided by a Division Bench of this court in Rajoo alias Raj Kumar Singh and another vs. State of Bihar and another, C.W.J.C. No. 25 of 1976 (R) with Cr. Misc. No. 561 of 1976 (R). Therefore, according to us there is no merit in the submission of the learned counsel for the petitioner under point no. (i). Learned counsel for the petitioner, however, has relied on a decision in the case of Bandi Kotayya vs. State, A.I.R. 1966 A.P. 3775, where is was observed that all reports under section 173 were police reports, 11ut all police reports need not be reports under section 173. That being the position, a preliminary charge-sheet was no doubt a police report, but the Magistrate holding an inquiry under section 207A cannot take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of the report. He must wait for the report under section 173 forwarded to him by the police after completing their investigation. In our opinion, the observations made by their Lordships are not applicable in the instant case. Learned counsel for the petitioner, in the instant case has not been able to point out by reference to the charge-sheet that it did not contain some of the necessary materials required under section 173 of the Code. Their Lordships have also said that it depends upon the facts and circumstances of the case. Learned counsel for the petitioner, in the instant case has not been able to point out by reference to the charge-sheet that it did not contain some of the necessary materials required under section 173 of the Code. Their Lordships have also said that it depends upon the facts and circumstances of the case. Their Lordships have not laid down a general proposition of the law, but only mean as it has to be decided whether in substance it is a charge-sheet or not. Besides, in that case their Lordships were not considering the case where the cognizance was also taken on the basis of the said charge-sheet. Learned counsel pointed out that Bandi Kotayya's vs. State case (supra) was also followed in Ram Setty Butchaiah vs. State, 1969 Cr. L.J. 542, where it was observed that section 169, 170 and 173 must be read together. Section 173 deals only with the final report of the police and such a report was submitted only after the entire investigation was completed. Although a preliminary charge-sheet might have been filed, but that preliminary charge-sheet did not indicate in any manner the termination of investigation. But on the other hand it indicates that something was further to be investigated in order to enable the police to complete the investigation and file the report as visualised under S. 173. The report under S. 173 is report on the result of investigation made under chapter XIV. In our opinion, this observation also is of no avail in the instant case. It may be noticed that their Lordships were considering Old Code of Criminal Procedure. The report under S. 173 is report on the result of investigation made under chapter XIV. In our opinion, this observation also is of no avail in the instant case. It may be noticed that their Lordships were considering Old Code of Criminal Procedure. Now, according to the New Code of Criminal Procedure under S. 173 a specific provision has been made in sub-section (8) for making further investigation and submitting further report, after submission of a report under sub-section (2) of section 173 of the Code, which reads thus:– "(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provision of sub-section (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." In that view of the matter it could not be said that the report submitted by the investigating officer under sub-section (2) (ii) of section 173 has a sense of finality as contended by the learned counsel for the petitioner. What is required under section 173 (2) (ii) is that it must contain all the informations mentioned in section 173 (2) (ii). If it so contain, then according to us it is a real chargesheet as contemplated under section 173 of the Code although it is termed as a preliminary chargesheet. 5. Now we advert to consider point no. (ii) of the learned counsel. He has submitted as mentioned earlier that the learned Chief Judicial Magistrate has not taken cognizance in the eye of law. In support of his submission he has relied upon a decision in the case of R.R. Chari vs. State of Uttar Pradesh, A.I.R. 1951 S.C. 207, where their Lordships in paragraph 9 has approved the observation made in Supdt. & Remembrancer of Legal affairs W.B. vs. Abani Kumar, A.I.R. 1950 Cal. 437, wherein it was held as follows:– "What is taking cognizance has not been defined in the Cri. P.C. & I have no desire to attempt to define it. & Remembrancer of Legal affairs W.B. vs. Abani Kumar, A.I.R. 1950 Cal. 437, wherein it was held as follows:– "What is taking cognizance has not been defined in the Cri. P.C. & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s. 190 (1) (a), Cri P.C. he must not only have applied his mind to the contents of the petitioner but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chap., proceeding u/s 200 & thereafter sending it for inquiry & report u/s 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigation u/s. 158 (3) or issuing a search warrant." In our opinion, the above observations are of no avail in the present case. According to us the learned Chief Judicial Magistrate has taken cognizance in accordance with law. Learned counsel for the petitioner, however pointed out that his subsequent order would show that he had not taken cognizance on 24.6.1976. He referred to various orders passed on 21.7.1976 onwards. The order dated 21.6.1976 reads thus:– ^^vdsyk vfHk;qDr dkjkxkj ls izLrqr gq,A fnukad 3-8-1976 dks vfUre izfrosnu dh izrh{kk esa izLrqr djsaA** In our opinion, this order and the other orders dated 3.8.1976, 19.8.1976, 6.9.1976, 22.9.1976 and 19.10.1976 are the orders passed in accordance with law. In our opinion these order appears to have been passed under the provision of Explanation 1 to Section 309 of the Code and obviously these orders are after taking of the cognizance. Therefore, in our opinion, there is no merit in the submission of the learned counsel for the petitioner and the point no. (11) either. 6. In the result the application for bail of the petitioner is rejected, and the impugned order of the learned sessions Judge is affirmed. Application dismissed.