Judgment M. P. Singh, J. 1. This is a revision petition by the complainant, Jamun paswan, for further enquiry into his complaint which was dismissed on the 6th December, 1978, by the learned S. D. J M. , Muzaffarpur West. It appears that on 29-11-1977, a complaint was made by the petitioner. Without taking cognizance, the complaint was sent to the police for investigation under Sec.156 (3) of the Code of Criminal Procedure. A police case was then instituted the same being Kurhani P. S. Case No.4 (12)-77 under Sections 384/342/147/392 of the Indian Penal Code. Final report dated 1-2-1978 was submitted by the police. 2. During the pendency of the police investigation several protest petitions were filed by the complainant. The first protest petition was filed on 19-12-1977 complaining against the police. From the order dated 9-8-1978 passed by the S. D. J. M, Muzaffarpur West, it appears that another protest petition dated 23-1-1978 was also filed but that protest petition is not on the record. The third protest petition was filed on 15-3-1978 and the fourth was filed on 11-8-1978. The learned Sub-divisional judicial Magistrate while dismissing the complaint petition on 6-12-1978 has not clearly specified in his order as to whether he was dismissing the original complaint petition filed on 29-11-1977 or any of the four other protest petitions. Para 6 of his order dated 6-12-1978 indicates that he was dismissing the complaint petition dated 29th November, 1977, but it is not very clear. In para 3 of that order the Magistrate refers to the earlier fact that the final report was rejected and the protest petition which had been filed during the course of investigation was accepted. That had been done on 9-8-1978 but there the two protest petition mentioned are dated 19-12-77 and 23-1-78. It thus, appears that though he was dismissing one of the protest petitions which was treated as complaint it is not clear which protest petition was actually dismissed. The order of dismissal passed by the learned Magistrate, therefore, must be held to be vague. 3. Another point which arises in this case is that when the original complaint dated 29-11-1977 was sent to the police under Sec.156 (3) of the Code for investigation and final report dated 14-2-1978 was submitted, the same was rejected by the Magistrate by his order dated 9-8-1978. 3. Another point which arises in this case is that when the original complaint dated 29-11-1977 was sent to the police under Sec.156 (3) of the Code for investigation and final report dated 14-2-1978 was submitted, the same was rejected by the Magistrate by his order dated 9-8-1978. He said in that order that he was rejecting the final report and was accepting the protest petition. Now it is a well settled principle that when a final report is submitted by the police that no case is made out for sending a case for trial, it is open to the Magistrate to agree with the final report and close the proceedings and discharge the accused. Equally it is open to him to take a different view and to order further investigation under Section 156 (3) and after submission of the final report he my take cognizance of the case. Under the Old Code he could do so under the provisions of Section 190 (1) (c) on suspicion : vide Abhinandan Jha V/s. Dinesh Mishra, AIR 1961 SC 117: (1967) 3 SCC 668 and even under clause (b) of Section 190 (1) if in his opinion the facts stated in the report of the police constituted an offence but now he can do it only under Sec.190 (1) (b) of the new Cr. P. Code, 1973 : See the Full Bench case Kuli Singh V/s. The State of Bihar, 1971 B. B. C. J 400. In the present case the Magistrate rejected the final report. He could have taken cognizance of an offence if he formed an opinion on the facts stated therein that they constituted an offence and this he could do notwithstanding the opinion of the police expressed in the final report. The question as to how a Magistrate should deal with the final report submitted under Sec.173 of the Code of Criminal Procedure was raised in the case of Abhinandan Jha V/s. Dinesh Mishra, AIR 1968 Supreme court 117 (supra ). It was held in that case by the Supreme Court : "even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. It was held in that case by the Supreme Court : "even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report that the opinion formed by the police is not based on a full and complete investigation, in which case, the Magistrate will have ample jurisdiction to give directions to the police under Sec.156 (3) to make a further investigation That is, if the Magistrate feels after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation under Sec.156 (3 ). The police after such further investigation may submit charge-sheet or again submit a final report depending upon further investigation made by them. If ultimately the Magistrate forms the opinion that the facts sit out in the final report constitute an offence, he can take cognizance of the offence under Sec.190 (i) (b) notwithstanding the contrary opinion of the police expressed in the final report. " 4. In the instant case the Magistrate while rejecting the final report by his order dated 9-8-1978 did not order for further investigation nor did he take cognizance of any offence upon the police report. He was not bound to do so because another course was open to him which he adopted in the present case, though irregularly. 5. It was a case not originally instituted before the police but instituted on a complaint before the Magistrate. That complaint, before taking cognizance on it, was sent to the police for investigation under Sec.156 (3) of the Code. In such a situation the complaint does not disappear even after final report is submitted by the police. It does not merge in the investigation by the police and does not lose its identity, It does not go out of existence. As observed in Tula Ram V/s. Kishore Singh, AIR 1977 s. C.2401 at 2405 "what he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. As observed in Tula Ram V/s. Kishore Singh, AIR 1977 s. C.2401 at 2405 "what he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the complainant. " That was a case under the present Code. In that case the Magistrate before whom the complaint was made, at the pre-cognizance stage ordered investigation under Sec.156 (3 ). After the police submitted final report, the Magistrate examined the complainant on S. A under Sec.200 and issued processes under Sec.204. The order of taking cognizance and summoning the accused was in challenge before the Supreme Court and it was contended that after the final report was submitted by the police, only two alternatives were available to the magistrate (i) either he could direct re investigation if he was not satisfied with the final report, or (ii) that he could straight way issue processes under section 204 of the Code and that the Magistrate having not adopted any of the two courses the order of taking cognizance wasillegal, it was urged that the complaint become uonest after the Magistrate ordered investigation under Sec.156 (3) and the Magistrate could not act upon that complaint any longer. The question of law, thus, that fell for consideration before the Supreme Court was "whether or not the Magistrate after receiving the complaint and after directing investigation under Sec.156 (3) of the Code of Criminal Procedure, 1973, and on receipt of the final report form the police could issue notice to the complainant, record his statement and the statements of other witnesses ar. d then issue processes, under Sec.204 of the Code of Criminal Procedure. It was held that the magistrate could do that and the action taken by the Magistrate was fully supportable in law and that he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing processes against the accused. d then issue processes, under Sec.204 of the Code of Criminal Procedure. It was held that the magistrate could do that and the action taken by the Magistrate was fully supportable in law and that he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing processes against the accused. It is clear from the decision aforesaid that all the three alternatives were held to be available to the Magistrate, that is to say (i) he could order further investigation, or (ii) he could act upon the report, agree with it and discharge the accused, or (iii) he could ignore the report and could take cognizance of the complaint and proceed with it under chapter XIV of the Code of Criminal Procedure, 1973. It is thus clear that after receiving the report, the Magistrate is not debarred from taking cognizance of the complaint and from proceeding with the complaint and disposing it of according to law. In other words he can proceed according to the provisions of Sections 190, 200 and 204, Cr. P. Code after receipt of the final report from police. Even after the final report is submitted but before it is accepted, the Magistrate is competent to take cognizance of the complaint because the complaint is still alive and exists. But the difficulty in the instant case is that there is nothing to show that the magistrate took cognizance of the original complaint. He did not pass any order on the original complaint dated 29-11-1977 indicating that he had applied his judicial mind to the facts of the case for the purpose of proceeding under Sec.200 and the other provisions of the Code following it. After the final report was received the Magistrate simply said on 9th August, 1978, that he was rejecting it and was accepting the protest petition. So he did not deal properly either with the complaint dated 29-11-1977 or with the final report of the police under Sec.173 dated, 14-2-1978. He appears to have dismissed some unspecified protest petition on 0 12-1978. Considering all these matters it appears to me that the order dated 6-12-1978 passed by the learned SD. J. M, Muzaffarpur, is illegal and must be set aside. He appears to have dismissed some unspecified protest petition on 0 12-1978. Considering all these matters it appears to me that the order dated 6-12-1978 passed by the learned SD. J. M, Muzaffarpur, is illegal and must be set aside. When the original complaint dated 29-11-1977 was on record and legally in existence to be disposed of according to law, the four protest petitions cannot be held to be maintainable as complaints. Consequently the case has to be sent back for reconsideration. 6. Counsel for the accused submitted that the accused persons had appeared during the police investigation as they had been arrested by the police and that they had never appeared at any stage during the enquiry under Sec.202, Cr. P. C. and hence their appearance should not be treated as if they had appeared during the enquiry under Sec.200, Cr. P. C. Suffice to say that the Magistrate will keep this fact in mind. 7. In the circumstances I would set aside the order dated 6-12-1978 passed by the S. D. J. M. , Muzaffarpur West, and send the case back to him for disposal according to law. He may take cognizance of the complaint dated 29-11-1977 or may act on the final report of the police dated 14-2-1978. He may agree with it and close the proceedings or may disagree with the opinion of the police and take cognizance on the facts stated therein under Sec.190 (1) (b) if in his opinion these facts constitute any offence. Alternatively he may direct further investigation. All the three courses arc open to him and he is free to follow any one of them. The order passed by him on 19-8-78 and all orders passed therafter including the order dated 6th December, 1978, are set aside and he will proceed afresh from the date when he received the final report of the police under section 173, Cr. P. C. dated 14-2-1978 and then would pass the necessary order. He shall not take into consideration any extraneous matter. He will proceed in the light of the observations made above. The application is allowed. Petition allowed.