JUDGMENT P. S. Sa hay. J. These two applications arise out of two different orders passed in G. R. Case No. 1760 of 1973. Criminal Miscellaneous No. 775 of 1976 has been filed by Bharat Pandey against the State of Bihar and six others against the order dated 12.11.1975, by which the Magistrate recalled his previous order dated 19.7. 1975. Taking cognizance under section 182 and 211/34 of the Indian Penal Code. Criminal Miscellaneous No. 603 of 1976 has been filed on behalf of four persons against the order dated 2. 2. 1976 taking cognizance against the petitioners and others (14 persons in all) under sections 144, 436, 435 and 302 of the Indian Penal Code. It was transferred to the Court of Sri H. C. Singh, Judicial Magistrate, 1st Class, for commitment proceedings. In order to appreciate the points some facts will i, e. necessary. 2. On 31.12.1973 the Officer-in-Charge of Mairwa Police Station learnt that certain huts belonging to the Harijans bad been burnt. He rushed to the place and one Ramkishun Harijan reported that Kailash Pandey, Dayanand Pandey. Juttan Pandey and Bishwanath coudhary came near his house and Kailash Pandey ordered and Dayanand prepared a lukari and set fire to his hut, in which his father, Teju Harijan was sleeping. Because of old age he could not come out of the hut and he was burnt alive. He raised halla and a number of persons arrived On the said statement a first information report was lodged against ten persons who where named in the said report. Investigation was taken up by the police and inquest was prepared of the dead body of Teju Harijan. A post mortem examination was also held by Dr. Dharmdeo Choudhary, Assistant Surgeon of Siwan Hospital, who opined that the death was due to severe burn injuries, producing shock. During the pendency of this application, an application was filed before the Chief Judicial Magistrate alleging that the investigating officer had not been conducting the investigation properly. It seems that the investigation was taken from the police officer concerned and entrusted to the C.I.D. which further investigated into the matter. During the pendency of this application, an application was filed before the Chief Judicial Magistrate alleging that the investigating officer had not been conducting the investigation properly. It seems that the investigation was taken from the police officer concerned and entrusted to the C.I.D. which further investigated into the matter. On 20.6.1975 a report was submitted by the police that the allegations made in the first information report were all false, and, therefore, the informant Ramkishun Harijan and the witnesses should be put on trial under sections 182 and 211/34 of the Indian Penal Code. Another report was submitted that the ajllegations made by the informant were not correct and, therefore, final report was submitted in this case as false. It seems that the Chief Judicial Magistrate considered the report for the prosecution of the informant and others, and by his order dated 19. 7. 1975 he took cognizance under sections 182 and 211/34 of the Indian Penal Code against the informant and others and transferred the case to the Court of Sri Y. P. Bhagat, Judicial Magistrate, 1st Class, for disposal. Sri Bhagat, on receipt of the records, found that he, being a Magistrate of the 2nd class, was not empowered to try the case, and, therefore, he sent back the case to the Chief Judicial Magistrate. A petition was also filed by the informant before the Chief Judicial Magistrate that the records of the above case in which cognizance had been taken under sections 182 and 211/34 of the Indian Penal Code be placed with the records of the main case, because the learned Magistrate had not considered the Police Diary and the final report submitted by the police. The learned Magistrate by his order dated 12. 11.1975 recalled the previous order dated 19.7.1975, which, as I have stated, has given rise to Criminal Miscellaneous no.775 of 1976 The entire Case Diary and the final report submitted by the police were placed before the learned Chief Judicial Magistrate who, on a consideration of all the materials, in spite of the final report submitted by the police, took cognizance, on 2. 2. 76 against the petitioners and others, as stated above, and this gives rise to Criminal Miscellaneous no. 603 of 1976. Both the application have been beard together and will be governed by a common order. 3. 2. 76 against the petitioners and others, as stated above, and this gives rise to Criminal Miscellaneous no. 603 of 1976. Both the application have been beard together and will be governed by a common order. 3. These cases were placed before a learned Single Judge who, in view of the point of law involved, has referred them to a Division Bench, and this is how they have been placed before us. 4. Mr. Prabha Shankar Mishra, learned counsel appearing on behalf of the petitioners, has submitted that the cognizance taken against the petitioners and others under sections 302, 144, 436 and 435 of the Indian Penal Code is bad, because a final report bad been submitted in this case and cognizance could not have been taken either under section 190 (1) (b) or under section 190 (1) (c) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code). His further contention is that though a protect petition was filed by the informant it was not in the nature of a complaint, and no steps were taken to treat it as such, and even if it was a petition of complaint, the procedure laid do" a under section 202 of the new Code had not been followed. Lastly, it has been submitted that the Chief Judicial Magistrate bad no power to recall his order dated 19.7.1975, because it was a final order and the persons aggrieved should have moved the superior Court. Mr. Nagendra Rai appearing on behalf of the Informant opposite party, however, submitted that the learned Magistrate "as perfectly justified in recalling the order, because the said order was passed without Complying with the provisions of law, and the learned Magistrate was also justified in taking cognizance against the petitioners and others on a perusal of the Case Diary and other materials, in spite of the fact that a final report had been submitted by the police. First of all, I will take up for consideration whet her the order dated 2. 2. 1976 taking cognizance against the petitioners is valid in law. 5. The case was instituted prior to 1.4.1974 when the new Code came into force. But cognizance bad been taken on 2.2.1976 after the enforcement of the new Code. First of all, I will take up for consideration whet her the order dated 2. 2. 1976 taking cognizance against the petitioners is valid in law. 5. The case was instituted prior to 1.4.1974 when the new Code came into force. But cognizance bad been taken on 2.2.1976 after the enforcement of the new Code. Therefore, the investigation was under the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code), and cognizance was under the new Code. Now, the question arises for consideration whether the cognizance which had been taken on 2.2.1976 will be deemed to be under the old or the new Code. Mr. Mishra has relied on a decision of our own Court in the case of Vasudeo Agrawal and another V. The State of Bihar disposed of on 23.6.1976, in which a similar question arose for consideration. His Lordship, after considering the various provisions of the new Code, held that though a police investigation was initiated under the old Code and had to be completed under the old Code, yet on completion thereof, any further step in the prosecution had to be taken according to the provisions of the new Code. In the above decision. reliance was also placed on a full Bench decision of the Gujrat High Court in Hiralal Nnnse Bhavsar Vs. the State of Gujrat. Therefore, there is no doubt that though investigation had been taken up under the old Code, the cognizance was taken on 2.2.1976. and, therefore, the provisions of the new Code will be attracted. Now, another important point has to be considered whether the Chief Judicial Magistrate was justified in taking cognizance against the petitioners on a perusal of the case Diary and other materials in spite of the fact that a final report had been submitted by the police. Under the old Code, even if the police submitted a final report, the Magistrate was not round to accept it; rather, he had the discretion to send the case back for reinvestigation under section 156 (3), Or the Magistrate was fully justified in taking cognizance after differing with the police report, but this could have only been done under the provisions of section 190 (1) (c) of the old Code. The matter has been thoroughly discussed in the case in Abhinandan Jha V. Dinesh Mishras. The matter has been thoroughly discussed in the case in Abhinandan Jha V. Dinesh Mishras. and their Lordships after discussing the entire matter had held that irrespective of the final report, it was open to the Magistrate to differ and take cognizance under section 190 (1) (c) on the ground that he had reason to suspect that an offence had been committed. It may be mentioned in this connection that in paragraph 15 of the judgment "190 (1) (b)" is a mi .take for" 190 (1) (c)". and the position has been made clear in Ramchandra V. State of Uttar Pradesh where the mistake was detected, and there is also an editorial note that in the original and blue print, the a above section was 190 (1) (c) and not 190 (1) (b) as mentioned there. Under the old Code the order taking cognizance after differing from the police report would have been completely justified, but there has been some charge in section 190 (1) (c), and the word suspicion' has been deleted. It is better to quote the provisions under section 190 of both the Codes; Old Code: "190 (1) Except as hereinafter provided any Presidency Magistrate. District Magistrate or Sub divisional Magistrate, and any other Magistrate specially empowered in this behalf, nay 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. New Code: "190 (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 constituted 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." Thus, on a perusal of the two provisions, it is absolutely clear that the word 'suspicion' does not find place in section 190(1) (c) of the new Code. Therefore, Mr. Therefore, Mr. Mishra has rightly contended that the only course left open to the Magistrate was to send the case for reinvestigation under section 156 (3), if he did not agree with the final report submitted by the police. In this view of the matter, the order of the learned Magistrate cannot be allowed to stand and must be set aside. Criminal Miscellaneous no. 603 of 1976 is, therefore, allowed, and the order passed by the learned Magistrate dated 2. 2.1976 is hereby set aside, and the case is Sent back to the Chief Judicial Magistrate for reconsideration in the light of the obsen8tion which has been made above. 6. Here, I would like to dispose of another point which has been raised in this case that a protest petition was filed on behalf of the informant, but, on going through the records, I find that it was never treated as a petition of complaint. Mr. Mishra has also submitted that, reading the protest petition, it was simply an allegation against the investigating officer and was not in the nature of a protest petition, because, according to him, the prayer was that the matter should be inquired into by some high police Officer. As I have said, the Magistrate never considered the said protest petition and never treated it as a petition of complaint. It will now be open to the informant, Ramkishun Harijan to press the petition before the Court below, and it will be for the Court below to take action in accordance with law. 7. Now, I will take up for consideration whether the learned Magistrate was justified in passing the order on 12.11.1975, by which he had recalled his order dated 19. 7. 1975 taking cognizance against the informant and others under sections 182 and 211/34 of the Indian Penal Code. It has been conceded by learned counsel for both the parties that the order was a final order and not an interlocutory order. If that be so, then, in my opinion, learned Magistrate had absolutely no jurisdiction to recall his. Own order by which he had taken cognizance against the informant and others. If the informant and others were aggrieved by the aforesaid order, they could have moved the Superior Court for revising the same. If that be so, then, in my opinion, learned Magistrate had absolutely no jurisdiction to recall his. Own order by which he had taken cognizance against the informant and others. If the informant and others were aggrieved by the aforesaid order, they could have moved the Superior Court for revising the same. In Atal Bihari Singh V. State of Bihar, which is a Bench decision of this Court, the question for consideration was whether the order passed by the Magistrate dropping the proceeding under section 107 of the Code of Criminal Procedure is a final order or an interlocutory order and their Lordships, on a consideration of a number of decisions, held that such order was a final order and could not be reviewed or recalled by the Magistrate, and the proper procedure was to get the said order set aside by a superior Court. This decision applies on all fours to the instant case, and, in my opinion, the learned Magistrate having once taken cognizance against the informant and others bad passed final order which could only be reviewed by the superior Court and not by himself. Mr. Nagendra Rai appearing for the informant has further contended that the learned Magistrate was perfectly justified in recalling his order be cause, according to him, the order taking cognizance was not in accordance with law. He has drawn our attention to the provision of section 195 (1) (b) in which it has been clearly laid down that some of the offences including this offence under section 211 of the Penal Code must be on the complaint of a Court before which the proceedings are pending. In that connecting, he has relied on a decision of the Supreme Court in State of Punjab V. Brij Lal Palta and another decision also of the Supreme Court in M.I. Sethi V. R. P. Kapur. No doubt the decisions support the contention of Mr. Rai by the question is that even it the Cognizance taken by the learned Magistrate was without jurisdiction could he have recalled his order or left it to be revised by the superior Court? In my considered opinion, the contention of Mr. Rai that the cognizance was bad in view of the provisions of section 190 (1) (b) and therefore the Magistrate could recall the same cannot be accepted. In my considered opinion, the contention of Mr. Rai that the cognizance was bad in view of the provisions of section 190 (1) (b) and therefore the Magistrate could recall the same cannot be accepted. It will be dangerous to the extreme if Magistrates are given powers to recall their own orders, which are final in nature and bad on their very face. This is not warranted by law and may lead to uphold the order of the learned Magistrate dated 12.11.1975 by which he had recalled his previous order dated 19.7.1975. I, therefore, set aside the order and allow Criminal Miscellaneous no. 775 of 1976. The case is being remitted back to the Court below. It will be proper for the Magistrate to await the order which will be passed in the main case which is remitted back in Criminal Miscellaneous No.603 of 1976 and then consider the prosecution report and fake action in accordance with law in the light of the observation which has been made above. 8. In the result, both the applications are allowed, the orders of the learned Magistrate dated 12.11.1975 and 2.2.1976 are hereby Set aside and the cases are sent back to the learned Magistrate for disposal in accordance with law in the light of the observations made above. R. P. Sinha, J. I agree. Applications allowed.