JUDGMENT M. Murtaza Husain, J. 1. THIS petition under Sec. 482 CrPC (New) has been filed for quashing orders dated 9-11-1976 and 26-6-1979 passed by the Judicial Magistrate, N. E. Rly. at Lucknow. 2. The facts of the case, giving rise to this petition, are that on 31-10-1975 Rakshak Baij Nath Tewari of the Railway Protection Force at Lucknow lodged a report at his outpost that two looking mirrors, which were railway property, were found in possession of Krishna Kant Tewari petitioner No. 1 and two others, whereby they were guilty under Sec. 3 of the Railway Property (Unlawful Possession) Act. A case was registered on the basis of that report and ultimately the investigating officer submitted a final report before the learned Magistrate informing him that no prima facie case stood made out against the accused persons and no legal action against them was called for-. On this report the learned Magistrate passed the following order on 9-11-1976 :- "I have gone through the case diary at length. I am satisfied that there are sufficient grounds for proceeding against the accused, Krishna Kant Tewari, Gur- bachan Singh, Gauri Shanker A. M. E. Tawarak Husain and Som Prakash (i.e., all the petitioners) under Section 3/4 Railway Property (Unlawful Possession) Act. I, therefore, take cognizance of this offence against the accused persons under Sec. 190 (c) of the CrPC 1973. Let the accused persons be summoned under the said sections for 30-11-1976. It will not be out of place to mention here that the I. O. has been asked to submit the final report on some administrative grounds and the prosecution has tried to usurp the jurisdiction of the court on weighing evidence on record." In pursuance of the above order the petitioners put in appearance before the learned Magistrate and pleaded that after the submission of the final report by the police, the learned Magistrate was not justified in taking cognizance and summoning the accused solely on the basis of papers which were put up by the police before him. This contention was rejected by the learned Magistrate through order dated 26-6-1979. The validity of the aforesaid two orders of the learned Magistrate has been challenged by the petitioners in this petition. 3. This contention was rejected by the learned Magistrate through order dated 26-6-1979. The validity of the aforesaid two orders of the learned Magistrate has been challenged by the petitioners in this petition. 3. IT was pointed out on behalf of the State that both the impugned orders are interlocutory in nature and exercise of revisional powers by this Court with respect to such orders being barred by Sec. 397 (2) CrPC (new), this Court cannot sit in judgment upon the validity of those orders as it will amount to a circumvention of that legal bar. This controversy stands resolved since the decision of the Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 . IT was pointed out by their Lordships that if the impugned order clearly brings about a situation which is an abuse of the process of Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Sec. 397 (2), CrPC can limit or affect the exercise of the inherent power by the High Court. IT was specifically laid down by their Lordships that :- "An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Sec. 397 (2), CrPC." 4. IN Smt. Nagawwa v. Veranna Shivalingappa Konjalgi, 1976 CrLJ 1533 the Supreme Court laid down four considerations which should weigh with the High Court for quashing or setting aside the order of a Magistrate whereby he issues process against an accused person after taking cognizance of an offence. IN Smt. Nagawwa v. Veranna Shivalingappa Konjalgi, 1976 CrLJ 1533 the Supreme Court laid down four considerations which should weigh with the High Court for quashing or setting aside the order of a Magistrate whereby he issues process against an accused person after taking cognizance of an offence. The third consideration laid down by their Lordships in that decision is :- "(3) Where the discretion exercised by the Magistrate in issuing process is capricious or arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible." If the plea of want of jurisdiction raised in the present petition is accepted and it is held that the learned Magistrate could not take cognizance under Sec. 190 (1) (c), CrPC (new) on the basis of the police report, with which he did not agree, and his order for issuing process against the petitioners was capricious and arbitrary in the sense that it was based on no evidence, or upon material which was wholly irrelevant or inadmissible, then the proceedings pending against the petitioners in the court of the learned Magistrate, are without jurisdiction, since the very start, continuance of such proceedings would obviously amount to an abuse of the process of court. In this situation it will be necessary for this court to exercise its inherent powers under Sec. 482 CrPC for the purpose of securing the ends of justice. 5. COMING to the merits of the petition, Sec. 190 (1) CrPC (new) lays down that:- "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-sec. (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; and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed." 6. The learned Magistrate has laid down in the impugned order dated 9-11-1976 that he had taken cognizaece in the present case under CI. (c) of sub-sec. (1) of Sec. 190, CrPC. The wordings of that sub-section in the present Code are different from those existing in the old Code. The learned Magistrate has laid down in the impugned order dated 9-11-1976 that he had taken cognizaece in the present case under CI. (c) of sub-sec. (1) of Sec. 190, CrPC. The wordings of that sub-section in the present Code are different from those existing in the old Code. Sec. 190(1)(c)of the old Code run as follows:- "(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." While interpreting that sub-section the Supreme Court in Abhinandan Jha v. Dinesh Mtsra, AIR 1968 SC 117 and a Division Bench of this Court in Ram Chandra v. State of U. P., 1970 AWR 826 laid down that:- "If a charge-sheet is submitted by the police, it is open to the Magistrate either to take cognizance under Sec. 190 (1) (b) or to refuse to take cognizance. Likewise, if a final report is submitted by the police, it is open to the Magistrate to accept the final report and drop the matter or to take cognizance under Sec. 190 (1) (c)." That interpretation can no more: guide us for judging the scope of Sec. 190 (1) (c) of the new Code because it was based upon the words "or suspicion" which then existed in clause (c) of Sec. 190 (1). This inference is deducible from the following observation of the Supreme Court in Abhinandan Jha's case (supra) : "Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he received information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that an offence has been committed. It is open to the Magistrate to take cognizance of the offence under Section 190 (1) (c) on the ground that after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed." 7. The words "or suspicion'' occurring in Sec. 190 (1) (c) of the old Code having been deliberately and consciously dropped by the legislature from that sub-section of the new Code it is obvious that the legislature intended that a Magistrate should ho more take cognizance on the basis of mere suspicion aroused through a perusal of final report and other papers submitted by the police. If he does not agree with that report he can order re-investigation by the police as indicated by the Supreme Court in Abhinandan Jha's case (supra), or if he proposes to take cognizance he can do so either (i) upon information received from any person other than a police officer e. g., a protest application filed by the aggrieved party or some one else, or (ii upon his own knowledge that suck offence has been committed. He cannot take cognizance under Sec. 190 (1) (c) of the new Code of Criminal Procedure in any other situation. 8. THEIR Lordships of the Supreme Court had examined the scope of Sec. 190 CrPC (new) in Tula Ram v. Kishore. Singh, AIR 1977, SC 2401. In that case the Magistrate had earlier ordered investigation by the police under Sec. 156 (3) of the CrPC. The police after due investigation submitted a final report. The learned Magistrate did not agree with it. He himself held a preliminary inquiry and thereafter issued process under Sec. 204, CrPC. It was observed by the Supreme Court that once cognizance was taken by the Magistrate under Sec. 190, CrPC it was open to him to choose any of the following alternatives:- 1. Postpone the issue of process and inquiry into the case himself, or 2. Direct an investigation to be made by the police officer, or 3. any other person. It follows from this decision that where investigation was not ordered by the Magistrate at pre-cognizance stage, he can take cognizance either on the basis of a complaint under Sec. 190 (1) (c), CrPC or on the basis of a police report of relevant facts as laid down by Section 150 (1) (b). If he does not take cognizance under any of these two provisions and wants to take cognizance upon information received from any person other than a police officer, or upon his own knowledge he can postpone the issue of process and direct an enquiry by himself or by any other person or investigation by the police. Without having such fresh material he cannot issue summons against the accused. 9. IN the present case the learned Magistrate had not received any information of the offence complained of from any person other than a police officer. Nor he had his own knowledge about it. Without having such fresh material he cannot issue summons against the accused. 9. IN the present case the learned Magistrate had not received any information of the offence complained of from any person other than a police officer. Nor he had his own knowledge about it. Whatever impression he gathered about the occurrence was gathered by him on the basis of the same final report which was submitted by the investigating officer andwhich was rejected by him. The contents of the police papers might have aroused suspicion of the Magistrate, but on the basis of that suspicion he could not take cognizance and issue process against the accused under cl. (c) of Section 190 (1), CrPC (new). He did not himself make any inquiry or collect any material as Laid down by the Supreme Court in Tula Ram's case (supra). The learned Magistrate apparently committed an illegality by taking cognizance against the accused under Sec. 190 (1) (c) of the new Code of Criminal Procedure, and the discretion exercised by him in issuing process against the accused is capricious or arbitrary as it is based on no evidence, or on materials which were wholly irrelevant or inadmissible for the purposes of Sec. 190 (J) (c), CrPC (new). The impugned proceedings pending against the petitioners are thus without jurisdiction and the same amount to an abuse of the process of Court. This Court will certaitaly be failing in its duty if it does not quash such proceedings. 10. I, therefore, allow this petition and quash the two orders of the learned Magistrate and also the proceedings of the case pending against the petitioners on the basis of the two impugned orders. -Petition allowed.