JUDGMENT 1. - This Criminal Misc. Petition is directed against the order dated 22.4.98 passed by the Civil Judge (JD)-cum-Judicial Magistrate, First Class, Pali in Criminal Case No. 316/98 whereby he has directed further investigation by the police. 2. Briefly stated, the facts giving rise to the present petition are that the respondent Mangi Lal lodged a report with the Police Station, Kotwali, Pali on 19.5.90 alleging inter alia that he along with his family members including his father Girdhari Lal were living in Janta Colony of Pali. On the previous night, they were sleeping on the roof of their house. It was at about 1.30 A.M. in the night that some body knocked the door of their house and called for opening the door on which his father Girdhari Lal went and opened the door of his house. No sooner the doors were opened, three persons, being armed with lathis, forcibly entered the house and started assaulting his father with lathis. His wife started shouting and, as a result, the first informant also got awakened and came down the up stairs and saw that three persons, out of whom two were wearing 'dhotis' while the third one was wearing pant, ran out of the house leaving his father after closing the door from out side. It was also alleged that their neighbour Ogar Ram Ghanchi was inimical to his family and Ogar Ram's wife had previously threatened to keep Girdhari Lal under surveillance. On this report, an FIR under Section 458 and 307/34, I.P.C. was registered and investigation commenced. Due to death of Girdhari Lal, offence punishable under Section 302,1.P.C. was added. 3. After completion of investigation, a final report was submitted wherein it was reported that even after interrogation of Mangi Lal first informant and his wife it could not be established that Ogar Ram and Bhaga Ram were the authors of the alleged crime and that real offenders remained untraced and hence final report closing the case was submitted before the learned Magistrate for acceptance. Being aggrieved, Mangi Lal filed a protest petition before the learned Magistrate and, treating the same as a complaint, the learned Magistrate proceeded to examine Mangi Lal as complainant as well as his wife Smt. Shanti Devi in support of the allegations of the complaint. Being aggrieved, Mangi Lal filed a protest petition before the learned Magistrate and, treating the same as a complaint, the learned Magistrate proceeded to examine Mangi Lal as complainant as well as his wife Smt. Shanti Devi in support of the allegations of the complaint. Subsequently, on the basis of statements of the aforesaid witnesses, the learned Magistrate, vide his impugned order, observed that after consideration of statements of aforesaid witnesses and the investigation record, looking to the gravity and nature of the offences, it appeared that investigation was not conducted and completed in its right perspective and correctly and hence, further holding that since the real offenders remained untraced and only because the case was quite old one, that could by itself be hardly a valid ground for filing of final report with an intent to close the case and, therefore, S.P., Pali was directed, while forwarding copy of the order along with statements of Mangi Lal and his wife Smt. Shanti Devi, that the further investigation be carried out and be finalised early and so, being aggrieved, the petitioner has moved this petition. 4. I have heard the learned counsel for the petitioner as well as the learned PP as also assisted by the learned counsel for the complainant Mangi Lal and have perused and considered the impugned order in respect of its legality, correctness and propriety. 5. The learned counsel for the petitioner, while relying on the decision of the Hon'ble Apex Court rendered in : Tula Ram and Ors. v. Kishore Singh, (1997) 4 SCC 459 ), while inviting attention to the provisions of Sections 190, 200, 204 and 156(3), Cr.P.C., submitted that as and when any complaint for commission of any cognizable offence is filed before a Magistrate, the Magistrate has two options, firstly, in exercise of powers under Section 156(3), Cr.P.C. to forward the complaint for registration and investigation of a case to the officer-in-charge of the Police Station concerned and, secondly, to take cognizance of the offences appearing to have been committed from the allegations of the complaint itself in exercise of powers vesting under Clause (a) of Sub-sec. (1) of Section 190, Cr.P.C. and to proceed to examine the complainant and his witnesses in attendance as provided under Section 200, Cr.P.C. and in case there is any need for further enquiry or investigation to proceed further under the provisions of Section 202, Cr.P.C. before disposing of the complaint by way of passing order either under Section 203 or Section 204, Cr.P.C. In the instant case, since the first informal went to the Police Station and straight away lodged an FIR for commission of cognizable offences on which an FIR was registered and investigation taken up resulting in ultimate filing of final report, as above. Accordingly, on filing of a police report under Section 173, Cr.P.C., the learned Magistrate had three options as also observed by the Hon'ble Supreme Court in : Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 ), as is the instant case, to have accepted the report and dropped the proceedings or to have dis-agreed with the report taking the view that there is sufficient ground for proceeding further for taking cognizance of the offence and to have issued process or to have directed further investigation to be made by the police under Sub-sec. (3) of Section 156, Cr.P.C. The learned Magistrate did not act accordingly and, instead, entertained the protest petition and, implicitly, treating the same as a criminal complaint, proceeded to take cognizance of the aforesaid offences and resorted to provisions of Chapter XV thereby examining the complainant and his wife under Section 200, Cr.P.C. 6. (3) of Section 156, Cr.P.C. The learned Magistrate did not act accordingly and, instead, entertained the protest petition and, implicitly, treating the same as a criminal complaint, proceeded to take cognizance of the aforesaid offences and resorted to provisions of Chapter XV thereby examining the complainant and his wife under Section 200, Cr.P.C. 6. He further submits that in view of the provisions of Section 202, Cr.P.C., when the learned Magistrate did not proceed under Section 192, Cr.P.C. and after taking cognizance of the offences, as above, after compliance of Section 200, Cr.P.C. thought it fit to postpone the issue of process against the accused and he had further option to have either enquired into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, whether or not there is sufficient ground for proceeding but it is subject to proviso appended thereto which provides that (a) where it appears to the Magistrate that the offence complained of is triable exclusively by a Court of Sessions; or (b) whether the complaint has not been made by a Court, unless the complainant and the witness present (if any) have been examined on oath under Section 200 Cr.P.C. Sub-sec. (2) of Section 202, Cr.P.C. further says that in an inquiry under Sub-sec. (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. Sub-sec. (3) of Section 202 further provides that if an investigation under Sub-sec. (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 7. Sub-sec. (3) of Section 202 further provides that if an investigation under Sub-sec. (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 7. Accordingly, the main thrust of arguments advanced by the learned counsel for the petitioner is on the ambit of provisions of Chapter XII and Chapter XV of the Code of Criminal Procedure whereby the legality and competency of the learned Magistrate has been challenged mainly on the ground that once investigation was completed and the learned Magistrate instead of directing further investigation into the allegations of the case, opts to act upon the protest petition treating the same as a complaint taking cognizance of the offences as alleged in the complaint thereby resorting to the procedure laid down under Chapter XV of the Code of Criminal Procedure and as a result of which the learned Magistrate was not entitled to have, in exercise of powers vesting under Sec, 202, Cr.P.C., directed the police for further investigation specially when the case was already investigated by the police and a final report was submitted which moved the learned Magistrate to act upon the complaint of the complainant and the alleged offence of murder punishable under Section 302, I.P.C. being exclusively triable by a court of Session, that also did not leave any scope or authority with the learned Magistrate to have referred the case for further enquiry or investigation in exercise of powers under Section 202, Cr.P.C. since, after resorting to the provisions of Chapter XV of the Code of Criminal Procedure, the learned Magistrate at the same time, could not have fallen back to his powers vesting under Section 156(3), Cr.RC. and hence the impugned order is liable to be set-aside. 8. and hence the impugned order is liable to be set-aside. 8. However, the only contention of the learned PR, on the basis of decision of the Hon'ble Apex Court rendered in M/s Jayant Vitamins Ltd. v. Chaitanyakumar & Anr., (1992 Cr.LJ 3450 (SC) ), is that once the case registered in connection with commission of alleged cognizable offences, the police is within statutory competence to investigate into the allegations of commission of cognizable offences and further investigation is also permissible as contemplated by Section 173(8), Cr.P.C. and so there can hardly be any justification for quashing of the impugned order. 9. The learned counsel for the complainant, relying on the decision rendered in Union Public Service Commission v. S. Papaiah & Ors., (1997) 7 SCC 614 ), submitted that since the learned Magistrate, on receipt of a final report submitted by the investigating agency after investigation of the aforesaid case, was within his legal authority and competency either to have accepted the final report or to have directed further investigation. Accordingly, his submission is that the present case did not fall within the ambit of provisions of Section 202, Cr.P.C and, instead, the learned Magistrate appears to have, by implication, proceeded in exercise of powers vesting under Sub-sec. (8) of Section 173, Cr.P.C. whereby the police has been directed to carry out further investigation and, accordingly, from his point of submission, the impugned order warrants no interference. 10. I have given my considerate thought to the aforesaid contentions. 11. So far as the chain of events and the facts of the case are concerned, as narrated hereinbefore, there is no dispute about it. Admittedly, the respondent Mangi Lal lodged a complaint for commission of cognizable offences with the Kotwali Police of Pali on which FIR was registered and, consequent upon death of his father, an offence under Section 302, I.P.C. was also added and investigation was carried out. Mangi Lal and his wife Smt. Shanti Devi were examined during the course of investigation and, after a pretty long investigation, the police did not find sufficient evidence and material thereby giving appearance of commission of aforesaid offences by the accused who was named by Mangi Lal and his wife and hence a final report was submitted with a request that the case be closed. However, Mangi Lal challenged the same by filing a protest petition. However, Mangi Lal challenged the same by filing a protest petition. Accordingly, as also held by the Hon'ble Apex Court in the decision rendered in the case of UPSC, (supra), the Magistrate could have exercised his option to have either agreed with the conclusion of the investigating agency and to have closed the case or to have disagreed with the same and, after application of mind to the facts of the case and the material and evidence collected as a result of investigation, to have taken cognizance of the offences so made out and issued process against the offenders or to have directed the investigating agency for further investigation into the allegations of the FIR. The learned Magistrate did not exercise any of the aforesaid three options and, instead, applying his mind to the allegations of the protest petition, opted to proceed to take cognizance of the alleged offences which could only be in exercise of powers vesting under Clause (a) of Sub-sec. (1) of Section 190, Cr.P.C. and, accordingly, after taking cognizance as such, the learned Magistrate proceeded under Section 200, Cr.P.C. to examine complainant as well as his wife Smt. Shanti Devi in support of the allegations of the protest petition treating the same as a criminal complaint and, subsequent thereto since the evidence so recorded and the material evidence was not found to be sufficient for taking cognizance for proceeding against the offenders by way of issuing process. The learned Magistrate then appears to have opted for directing the police to carry on further investigation into the allegations of the FIR. 12. The learned Magistrate then appears to have opted for directing the police to carry on further investigation into the allegations of the FIR. 12. Naturally, when the protest petition was filed by Mangi Lal was acted upon and used as a basis of criminal complaint taking cognizance of allegations of offences appearing there from enabling the Magistrate to proceed to examine the complainant and his evidence readily available, the learned Magistrate could not have fallen back to the FIR and, resulting from investigation, final report having been so filed by the police and to have returned the same for further investigation, the learned Magistrate was left with only option to proceed further according to provisions of Section 202, Cr.P.C. and since it was a complaint lodged in connection with the alleged commission of offences including that of murder being exclusively triable by a court of Sessions and that barred the jurisdiction of the learned Magistrate to have directed for any enquiry or investigation as envisaged by Section 202, Cr.P.C. as per the proviso (a) appended to Sub-sec. (1) of Section 202, Cr.P.C. Besides, proviso appended to Sub-sec. (2) of Section 202 Cr.P.C. mandates that if it appeared to the Magistrate that the offence complained of was triable exclusively by the court of Session, he should have called upon the complainant to produce all the witnesses and examine them on oath. 13. Therefore, in the instant case, being a murder case, being exclusively triable by a court of Session, in view of the aforesaid mandatory legal provisions, it was impermissible, incompetent and illegal on the part of the learned Magistrate to have still directed the police for further investigation into the allegations of the complaint so having been taken cognizance of and, therefore, the impugned order is liable to be set-aside on this score. 14. However, the learned counsel for the complainant on the basis of decision rendered in the case of the UPSC, (supra) submitted that the Magistrate was within his legal competence and power to have directed further investigation after acceptance of the final report even acceptance of final report and closure of the case in case there were certain shortcomings and irregularities necessitating reinvestigation brought to the notice of the court Whereas. In the instant case, the learned Magistrate did not think it fit to agree with the findings of the final report and to have accepted the same by ordering closure of the case and, instead, proceeded to act on the basis of protest petition and, as a result, it cannot be held that the learned Magistrate had proceeded in exercise of powers vesting under the provisions of Chapter XV of the Code of Criminal Procedure and hence the impugned order may be deemed to have been passed in exercise of powers vesting under Sub-sec. (8) of Section 173, Cr.P.C. warranting no interference. 15. So far as facts of this case are concerned, on the complaint of the UPSC, a cognizable case under Sections 12C-B, 420, 381, 468 and 478, I.P.C. was registered and, as a result of investigation, a final report was submitted by the CBI. However, the CBI did, as alleged, issue a notice of its intention to file final report in the case before the Trial Magistrate which was disputed by the UPSC and the learned Magistrate also, in compliance of law laid down by the Hon'ble Apex Court in the case of Bhagwant Singh, (supra), the Trial Court's failure to have informed the first informant (UPSC) to file any objection against acceptance of the final report and the lower court having accepted the final report, on objection from the UPSC, its refusal to order further investigation and the order so passed, having been affirmed by the revisional court, the Hon'ble Apex Court in an appeal, while holding the investigation doubtful and unfair, held that the learned Magistrate in the circumstances of the case was empowered to direct further investigation even after acceptance of report specially when the complainant was not even informed to have objected against the filing of the final report and its acceptance and hence, while accepting the appeal, the order of the learned Magistrate was set-aside and the case was remitted to the learned Magistrate to pass appropriate order for further investigation. 16. In the instant case, as also held by the Hon'ble Apex Court, as and when a complaint for the alleged commission of cognizable offences is filed, the Magistrate can forward the same to the officer-in-charge of the Police Station under Section 156(3), Cr.P.C. to register and investigate the case under the provisions of Chapter XII of the Code of Criminal Procedure. However, after investigation, as and when a final report (negative) is filed by the police, the Magistrate is competent to direct even for further investigation into the allegations of the complaint by refusing to accept the same or to proceed to take cognizance on the basis of material and evidence collected as a result of investigation disagreeing with the conclusion of the Investigating Agency. 17. In case the learned Magistrate does not proceed under Section 156(3), Cr.P.C. and, in exercise of powers under Section 190(1) (a), Cr.P.C., applies his mind to the facts and allegations of the complaint and takes cognizance under said Clause (a), he has no option but to proceed under the provisions of Chapter XV of the Code of Criminal Procedure. Merely because a protest petition was filed, since the learned Magistrate did not immediately act upon the same and directed the police for further investigation into the allegations of the FIR and, contrarily, he treated the same as a criminal complaint and taking cognizance of offences alleged to have been committed thereunder, proceeded to examine the complainant and his witness under Section 200, Cr.P.C., and it was thereafter only that he further thought it fit to postpone the issue of process against the accused so as to direct for investigation into the allegations of the complaint but, since it was a Case exclusively triable by a court of Sessions and hence he could not have directed the police to proceed further in exercise of power vesting under Section 202 (1), Cr.P.C. It was further mandatory for the learned Magistrate to have called upon the complainant to produce and examine all the witnesses that he proposed to examine in support of the allegations of his complaint. However, the learned Magistrate, in case he wanted the aid of investigation material, the same was already available to the Magistrate to have considered the same along with the evidence so recorded under Sections 200 and 202, Cr.P.C. during the course of enquiry into the allegations of the complaint made to the Magistrate. Once the Magistrate proceeded to take cognizance under Section 190 (1) (a), Cr.P.C. and proceeded under the provisions of Chapter XV of the Code of Criminal Procedure, he could not have fallen back to the provisions of Chapter XII of the Code of Criminal Procedure and, in exercise of his power vesting under Sub-sec. Once the Magistrate proceeded to take cognizance under Section 190 (1) (a), Cr.P.C. and proceeded under the provisions of Chapter XV of the Code of Criminal Procedure, he could not have fallen back to the provisions of Chapter XII of the Code of Criminal Procedure and, in exercise of his power vesting under Sub-sec. (8) of Section 173, Cr.P.C. to have, at the same time, ordered further investigation into the allegations of the FIR already registered and investigated into by the Investigating Agency. 18. As a result, as discussed above, Chapter XII of the Code of Criminal Procedure carves out a full-fledged empowerment and procedure for investigation of an FIR and the supervisory powers of the Magistrate exercising jurisdiction over the area in which the alleged offence was committed. Besides, the provisions of Section 190 (1), Cr.P.C. lays down the empowerment of the Magistrate to take cognizance of the alleged offences and so far as his power of taking cognizance of offence on the basis of complaint is concerned, the same is prescribed under Section 190(1) (a), Cr.P.C. only. Consequently, as and when Magistrate takes cognizance of any offence under this Clause (a) of the Section, he has to proceed further according to provisions of Chapter XV, Cr.P.C. before any final order either under Section 203, Cr.P.C. resulting in dismissal of complaint or under Section 204 resulting in issuing of process, after having proceeded under the provisions of Sections 200 and 202, Cr.P.C. This does not empower or enable the Magistrate to sumultaneously exercise power vesting under Section 173(8) Cr.P.C., as above. 19. As a result, from which ever angle it is viewed, the impugned order suffers from serious illegality, impropriety as well as irregularity warranting its being set-aside. 20. The learned Magistrate, once having taken cognizance of the alleged offence on the basis of complaint and after exercise of powers under Section 200, Cr.P.C. was left with no option but to have, in case the further proceedings were postponed for the purpose of investigation or enquiry, proceeded under Section 202, Cr.P.C. and to have called upon the complainant to examine all the remaining witnesses which he proposed to examine in support of the allegations of the complaint before proceeding to pass any order either under Section 203 or Section 204, Cr.P.C., as above. The learned Magistrate, instead, faltered by directing the police to carry further investigation into the allegations of the complaint consequent upon statements of Mangi Lal and his wife Smt. Shanti Devi having been recorded under Section 200, Cr.P.C., as above. 21. As a result of aforesaid discussion, the impugned order is liable to be set-aside. 22. In the result, this petition is accepted and the impugned order dated 22.4.98 passed by the learned Judicial Magistrate, Pali is set-aside and, instead, the learned Magistrate is hereby directed that he shall call upon the complainant to examine remaining witnesses in support of the allegations of the complaint which he intends to examine in support of the complaint. Thereafter, keeping in view the final report and the collected material and evidence so submitted by the Investigating Agency, he shall proceed to pass appropriate order in conformity with the provisions of Section 203 or Section 204, Cr.P.C. as the case may be. 23. This petition is disposed of accordingly. Let a copy of this order be immediately sent to the learned Magistrate for information and necessary action. *******