JUDGMENT : A. Pasayat, J. - Petitioner prays for quashing orders annexed as Annexures-2, 3 and 4 in proceedings, wherein his attempts to register a case u/s 394, Indian Penal Code were thwarted. 2. The factual aspect shorn of unnecessary details is that the Petitioner lodged a written report in Dabugaon police station in Koraput district alleging that on 25-6-1981 he was accepted by four unknown persons who dispossessed him of a sum of Rs. 15,000/- at knife point. He had drawn the money from bank in his capacity of Managing Director of Dabugaon LAMPS. The Investigating Officer submitted a Final Form reporting the case as false, which was accepted by the Judicial Magistrate, First, Class, Umerkote in G. R. Case No. 236 of 1981. According to the learned Judicial Magistrate the F. R. False No. 31 dated 3-9-1981 u/s 394, I. P. C. was received from the Officer-in-charge of Dabugaon Police station along with relevant records, Notice was issued to the informant by the police and since within seven days of receipt thereof no protest was received, the case was directed to be entered as false case. The Petitioner filed a petition which was described as a complaint petition u/s 200 of the Code of Criminal Procedure, 1973 (for short 'the Code') on 14-9-1981. That was treated by the learned Magistrate as a "protest petition". The learned Magistrate rejected the same on two grounds; viz.. (1) once having accepted the final report submitted by the Police Officer after investigation, the Court had no jurisdiction to review its order and to take cognizance; (2) the protest petition was not filed within seven days of receipt of notice and therefore, was not legal. The learned Magistrate in support of his first conclusion relied on a decision of the Patna High Court reported in 1981 Crl. L. J. 795 : Bhubaneshwar Prasad Sinha and Ors. v. The State of Bihar and Anr. 3. The revision applications were filed before the learned Sessions Judge, Koraput, Jeypore which were numbered as Criminal Revision Petition Nos. 55 and. 56 of 1981 of the said Court. The matter was heard and disposed of by the learned Additional Sessions Judge in whose registry the cases were re-numbered as Criminal Revision Petition Nos. 8 and 23 of 1982. The learned Additional Sessions Judge upheld the orders passed by the learned Magistrate on 11-9-1981 and 14-9-1981. 55 and. 56 of 1981 of the said Court. The matter was heard and disposed of by the learned Additional Sessions Judge in whose registry the cases were re-numbered as Criminal Revision Petition Nos. 8 and 23 of 1982. The learned Additional Sessions Judge upheld the orders passed by the learned Magistrate on 11-9-1981 and 14-9-1981. So far as the dispute relating to filing of protest petition within seven days is concerned, according to the learned Addl. Sessions Judge, the notice purported to be u/s 173 of the Code was served on 4-9-1981 and by tampering the date had been changed to 5-9-1981 and there was interpolation. He confirmed the finding of the learned Judicial Magistrate that the protest petition having not been filed within seven days was not entertainable. He further observed that when the learned Magistrate agrees with the report of the police and files the proceedings accepting the final report, the order In question amounts to a judicial order determining the rights of the parties. According to him, in view of the decision of the Patna High Court, on which reliance was placed by the Court below, the same was not to be interfered with. He distinguished the decision rendered by the Supreme Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, to which reference was made in the case of Bhuneswar Prasad Sinha (supra). He held that the Petitioner having received notice purported to be one u/s 173 of the Code on 4-9-1981, and having not filed the protest petition within seven days, the learned Magistrate accepted the final report submitted by the police, and accordingly the proceeding was finally closed. It could not be reagitated in a revisional proceeding before him and therefore, the Petitioner's protest petition dated 14-9-1981 was rightly rejected by the learned Magistrate. He would not have been justified In taking cognizance on the basis of said petition as in respect of the same facts constituting the offences, the Final Form had been submitted and disposed of by a judicial order accepting the same. He accordingly rejected both the revision applications. The orders passed by the courts below, as aforesaid, are assailed in this proceeding. 4. The challenge of the Petitioner is based mainly on the submission that mere acceptance of the Final Form does not deprive the Court of the power to take cognizance of a subsequent complaint. He accordingly rejected both the revision applications. The orders passed by the courts below, as aforesaid, are assailed in this proceeding. 4. The challenge of the Petitioner is based mainly on the submission that mere acceptance of the Final Form does not deprive the Court of the power to take cognizance of a subsequent complaint. The protest petition of the complaint petition, as the case may be, provides a foundation on which the Court can initiate a proceeding notwithstanding the acceptance of a Final Form earlier. The stand of the State on the other hand is that the taking of cognizance on a complaint petition or a protest petition, as the case may be, would amount to review of an order passed by the Magistrate earlier and would bring in disharmony and occasion conflicting orders being passed in respect of the same allegations. On consideration of the respective contentions, we find that the orders passed by the courts below are not sustainable. We shall deal with the matter in detail later. We feel it proper to deal with some of the relevant provisions as the controverses of the present nature are regular features. 5. There is no provision in the Code to file a protest petition by the informant who lodged the first information. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered and accepted by several High Courts. (See 1986 Crl. L. J. 1515: Hardev Singh Sandhu v. State of Rajasthan; Akshoy Kumar Dutta and Others Vs. Jogesh Chandra Nandy, and State of Bihar Vs. Sakaldip Singh and Others. However, the Supreme Court in the case of Bhagwant Singh v. Commissioner of Police and Anr., reported in Bhagwant Singh Vs. Commissioner of Police and Another stressed on the desirability of intimation being given to the informant, when a report made u/s 173(2) is under consideration. The Court held as follows: ... There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, the magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons, mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of report.... Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. The Supreme Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. The Supreme Court felt that the question relating to issue of notice and grant of opportunity as afore-described was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions. In the case of Abhinandan Jha (supra) the Supreme Court, while considering the provisions of Sections 156(3), 169, 173 and 190 of the Code held that there is no power, expressly or impliedly conferred under the Code, on magistrate to call upon the police to submit a charge-sheet. when, they have sent a report u/s 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. 'However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). Incidentally, we may notice two decisions of this Court rendered in the cases of Mahabir Prasad Agarwala and Another Vs. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). Incidentally, we may notice two decisions of this Court rendered in the cases of Mahabir Prasad Agarwala and Another Vs. The State, and Lakshman Jena Vs. Sudhakar Paltasingh, respectively. In the former case, this Court observed that when final report is submitted the Magistrate may either accept the same or disagree with the conclusion of the police and call for a charge-sheet. The conclusion arrived at in that case that the Magistrate can call for a chargesheet seems to be contrary to law, as laid down by the Supreme Court in the case of Abhinandan Jha (supra). To that extent the decision is not correct. The correct position in law has been stated in the case of Lakshman Jena (supra). 6. When a report forwarded by the police to the Magistrate u/s 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation u/s 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been submitted. When such a report is placed before the Magistrate, he has again an option of adopting one of the three courses open, i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3). The position is, therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The position is, therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the Investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers u/s 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case u/s 190(1)(a) though it is open to him to act u/s 200 or Section 202 also. (See India Carat Pvt. Ltd. Vs. State of Karnataka and Another, ). The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further, and drops the proceeding or takes the view that there is material for proceeding against some and there is insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, the Supreme Court indicated in the case of Bhagwant Singh (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned, in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. As indicated above, there is no provision in the Code for issue of a notice in that regard. But in practice as prevalent in this State such notices are given to the informant in terms of Rule 181 of the Orissa Police Manual, 1940 containing Rules made by the State Government and the Rules and Orders framed by the Inspector-General of Police with the approval of the State Government under the provisions of the Police Act, 1861 (V of 1861). No time limit is prescribed in the statute for submission of the protest petition. The Police Manual Form 33-A which is issued under Rule 181 requires the same to be filled within seven days. 7. We may add here that the expressions "charge sheet" or "final report" are not used in the Code, but it is understood in Police Manuals of several States containing die Rules and the Regulations to be a report by the police filed u/s 170 of the Code, described as a charge-sheet. In case of reports sent u/s 169, i. e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously, i. e., referred charge, final report or summary. In our State, the expression "final report" is commonly used. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under the Police Manual states it to be a notice u/s 173 of the Code in terms of Rule 181, there is nothing in Section 173 specifically providing for such a notice. In view of our conclusions regarding desirability of such a notice as recognised by the Supreme Court in the case of Bhagwant Singh (supra), the inaccuracy in the description does not affect the legality of the notice. 8. The main basis of the conclusions of the courts below regarding non- acceptance of the protest petition or the complaint petition, as the case may be is that the decision to drop the proceeding initiated on the basis of the First Information Report deprived the Court of the power to re-consider on the basis of a complaint petition. Reliance was placed on a decision of the Patna High Court in the case of Bhuhaneshwar Prasad Sinha (supra). Reliance was placed on a decision of the Patna High Court in the case of Bhuhaneshwar Prasad Sinha (supra). It was held that where the final report by police holding the case against accused persons to be untrue was accepted by the Magistrate earlier than the complaint petition was filed against the accused, the Magistrate would not be justified in taking cognizance on the basis of the complaint petition in respect of the same facts constituting the offence which were mentioned in the Final Form, because a judicial order was passed by accepting the Final Form. Support was sought to be derived in that case from the decision of the Supreme Court in the case of Abhinandan Jha (supra). 9. We may straightaway hold that the conclusion is untenable in view of the decision of the Supreme Court in the case of Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others. The decision was given in appeal before the " Supreme Court against the judgment of the Patna High Court in Bhuneshwar Prasad Sinha's case. The Supreme Court reversed the judgment of the Patna High Court and held as follows: The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report in that view of the matter, we hold that the courts below were not right in refusing to consider the complaint petition or the protest petition, as the case may be. 10. This Court in the case of Orissa State Power Loom Service Co-operative Society Ltd. Vs. Hrudananda Swain, held that a protest petition when made, is to be treated as a complaint-petition and the Magistrate after complying with the provisions of Chapter XV of the Code may either issue process to the accused persons or dismiss the complaint. The Court deprecated the practice of dropping the proceeding on the ground of earlier acceptance of the Final Form. The view arrived at in the said case has our concurrence. This position has already been indicated by a Division Bench of this Court way back in 1937 in the case of Hrushikesh and Others Vs. Krushna Chandra Ghadei. This Court held as follows: ... The view arrived at in the said case has our concurrence. This position has already been indicated by a Division Bench of this Court way back in 1937 in the case of Hrushikesh and Others Vs. Krushna Chandra Ghadei. This Court held as follows: ... even though the final report of the police may be accepted by the Magistrate in the first instance, there is nothing illegal if subsequently he revised his opinion and calls for charge-sheet after receiving the protest petition of the complainant and re-examining all the papers in the light of that petition and the submission made by the lawyer for the complainant. The following observations, however, are contrary to the law settled by the Supreme Court. ... two courses are open to the Magistrate in those circumstances. He may either proceed with the case as a complaint-case and issue summons against the accused persons u/s 204, Code of Criminal Procedure or else, he may call for charge-sheet and take no further action on the complaint petition. The observations relating to caning for the charge-sheet are contrary to law. However, the folmer observation relating to the powers of the Magistrate to re-consider the matter, according to us, is correct. 11. In view of the legal position as discussed above and in the absence of any provision in the Code requiring submission of the protest petition within seven days, the controvasy as to the date of receipt of the notice really loses signifance. 12. A perusal of the notice in question shows that the same was issued by the Ofiicer-in-charge of Dabugaon Police Station on 3-9-1981. This, according to us, is not a compliance of the requirement of giving a notice to the informant. As decided by the Supreme Court in the case of Bhagwant Singh (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. No intimation was given by the Magistrate as to when he proposed to consider the report and as to within what time the protest, if any, was to be lodged by the informant. Therefore, even if a notice in terms of Rule 181 of the Police Manual was given, that cannot be deemed to be 'ill compliance of the requirement as laid down by the Supreme Court. Therefore, even if a notice in terms of Rule 181 of the Police Manual was given, that cannot be deemed to be 'ill compliance of the requirement as laid down by the Supreme Court. The Court categorically held in Bhagwant Singh's case (supra) as follows: ... the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report... Therefore, the stress is on the issue of notice by the Magistrate and the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. A perusal of the order-sheet of the Magistrate in G.R. Case No. 236 of 1981 indicates that till 10-9-1981 the Magistrate had not received any Final Form or any intimation from the Investigating Officer and orders were passed on 10-9-1981 to submit the same by 24-9-1981 and the case was posted to 24-9-1981. But on 11-9-1981 the Magistrate received the F. R. False No. 31 dated 3-9-1981 and on perusal of the same and the report of the Officer-in-charge, dropped the proceeding on the ground that the informant had received the notice on 4-9-1981 and since no protest was received though seven days had elapsed. Obviously the matter could not have been taken up on 11-9-1981, as there was direction on the previous date that the matter was to be taken up on 24-9-1981. On that ground also the order becomes vulnerable. 13. In the instant case the Magistrate has not considered the matter keeping in view the appropriate provisions of law and has relied on a decision which has been subsequently up-set by the Supreme Court. We, therefore, quash the orders as contained in Annexures 2, 3 and 4 and direct the Judicial Magistrate. First Class, Umerkote to consider the protest petition or the complaint petition as styled and deal with the same in accordance with law. It would be open to him, after consideration of the materials on record, to come to a conclusion if cognizance is to be taken or not. 14. The writ application is allowed, but in the circumstances without any order as to costs. D.P. Mohapatra, J 15. I agree. Application allowed. Final Result : Allowed