Judgment R.N.Sahay, J. 1. The Special Judge, Madhubani bv his order dated 7.5.1993 in G.R. No. 2380/91 (Tr. No. 158/93) has taken cognizance of the offence punishable under Sections 7 and 8 of the Essential Commodities Act against these three petitioners which is sought to be quashed by this application. 2. On 22.11.1991 one Ram Bhajan Das (opposite partv No. 2) of village Manmohan PS. Basopatti in the district of Madhubani submitted a written report to the Officer-in-charge Basopatti Police Station alleging that petitioner No. 1 who was appointed as a dealer under the Public Distribution System, was not regular in distributing Kerosene Oil and Sugar to the consumers. It is further alleged that he was supplying these items in less quantity. It is further alleged that he was also charging excess price. It was next alleged that on the same day i.e. on 22.11.1991 one Ajab Lal Yadav came to the complainant and said that a drum of Kerosene Oil was kept in the bathan of one Md. Sabjan. The complainant along with several other person went to that bathan and found a drum of Kerosene Oil. On inquiry,Md. Sabjan said that the drum of Kerosene Oil belonged to petitioner No. 1. On information, Police reached there. It is alleged that petitioner No. 1 confessed that Kerosene Oil belonged to him. The petitioners are alleged to have tried to take away the Kerosene Oil on the point of revolver. 3. On the basis of these allegations mentioned in the written report, a case under Section 7, E.C. Act and Sections 341, 386, 379, IPC was instituted against the petitioners and one other. Thereafter, the matter was investigated by the police and after investigation police found that the allegation levelled against the petitioners, for which a case under Section 7, E.C. Act was filed, was false one, and as such, final report was submitted on 10.5.1992. 4. The learned Special Judge, Madhubani inspite of submission of final report, took cognizance under Sections 7 and 8 of the E.C. Act against the petitioner and other accused on the basis of protest petition of the complainant as well as on the basis of materials contained in the case diary and issued summons against them. 5. The petitioner No. 1 was a dealer under Public Distribution System. 5. The petitioner No. 1 was a dealer under Public Distribution System. According to the petitioners, there was no irregularity in the distribution of Sugar and Kerosene Oil as well as wheat and rice as the same was also verified by the Supply Officer, Mukhiya, Prakhand Vikash Padadhikari and the members of Vigilance Committee. The aforesaid facts would be borne from the supervision note of SDPO, Jai Nagar, who after inspection of the register as well as other records found no irregularity in the distribution and found the case to be a mistake of fact. The S.P., Madhubani after examining the facts collected also found the case to be mistake of fact. Petitioners No. 2 and No. 3 had no connection with petitioner No. 1 and due to enmity they have been falsely made accused in this case. 6. The learned Counsel appearing on behalf of the petitioners has argued that the Special Judge has no jurisdiction to take cognizance under Section 11 of the E.C. Act on the basis of a report submitted by a private person. There is no report of a public servant in this case. He further argued that the learned Special Judge passed the impugned order on the protest petition of the complainant and this cannot be said to be a report of a Government Servant, and as such the impugned order is invalid. 7. The learned Counsel for the complainant submitted that it is a settled law that under the E.C. Act also the case can be instituted on the basis of the report submitted by the police or by any private person. It is settled by the decisions of this Court that the Court has power to differ with the final report and take cognizance by a reasoned order. He further submitted that the learned Special Judge after looking into the protest petition, case diary and the materials collected during the investigation was satisfied that prima facie case was made out, hence the order was perfectly valid. 8. Learned Counsel for the petitioners has referred to M/s Mithila Cycle Centre V/s. The State of Bihar,1990 (2) PLJR 184 wherein in a similar situation police submitted final report stating "mistake of fact". It was contended in that case that the Court has no jurisdiction to take cognizance on its own satisfaction. 8. Learned Counsel for the petitioners has referred to M/s Mithila Cycle Centre V/s. The State of Bihar,1990 (2) PLJR 184 wherein in a similar situation police submitted final report stating "mistake of fact". It was contended in that case that the Court has no jurisdiction to take cognizance on its own satisfaction. The learned Judge of this Court dealt with this question as follows : "It has been urged that a final report submitted by the police stating therein that no offence is made out cannot be construed as "a report of the facts constituting such offence". The argument is that the report in question must disclose that some offence has been committed and only then the Court has jurisdiction to take cognizance; if the report does not indicate that any offence has been committed then the question of cognizance does not arise. In support of this, the learned Counsel for the petitioners has relied on a Division Bench decision of this Court reported in 1968 PLJR 36 Ratan Lal Sultania V/s. The State.In that case report for prosecution of the accused had been made by the Supply Inspector and this was sent to the police for investigation. The police after completing investigation submitted a final report stating therein that there was no prima facie case against the accused. Their Lordships considered the question whether on a basis of such a report the Sub-Divisional Magistrate was justified in taking cognizance, and relying upon a decision of the Supreme Court in AIR 1996 SC P. 928 held that he was not competent to do so. The relevant passage may be quoted as under : "The point is now well settled that unless there is a report by a public sen ant who is satisfied that there is a prima facie case of contravention of any of the rules or orders issued under the Essential Commodities Act, no Magistrate can take cognizance of the offence and the prosecution cannot be launched in such a situation. The Sub-Divisional Officer had no power to summon the accused person for trial after taking cognizance, as appears to have been done. The Sub-Divisional Officer appears to have proceeded under Section 190(1) of the Code of Criminal Procedure which is not applicable to a prosecution under the Act, because it is governed by the special procedure provided in Section 11." 9. The Sub-Divisional Officer appears to have proceeded under Section 190(1) of the Code of Criminal Procedure which is not applicable to a prosecution under the Act, because it is governed by the special procedure provided in Section 11." 9. Learned Single Judge observed that the view taken by the Division Bench in Ratan Lal Sultania V/s. State, 1968 PLJR 36 was on the basis of the view taken in Kuli Singh V/s. State, 1979 Cr LJ 1575 : 1978 PLJR 500 which was decided by a Special Bench. The point for consideration before the Special Bench in Kuli Singhs case (supra) was whether the Magistrate could on his own assessment proceed to take cognizance in the case even though the police had submitted final report. Their Lordships expressed the view that even when the police submitted final report under Section 190 of the Code of Criminal Procedure, it gave full powers to the Magistrate to decide whether it may accept the final report or take cognizance in the case but this could not be done in cases where the statute provides that the Court shall not take cognizance for an offence except on a report in writing of the facts constituting offence as provided under Section 11 of the E.C. Act. The same view was reiterated by this Court in Sudarsan Sharma V/s. State of Bihar, 1980 BLJR 61. 10. In Satya Narain Masudi V/s. State of Bihar, (1980) 3 SCC 152 the question that arose for consideration before the Supreme Court was whether the Court could look into other papers and documents accompanying the report under Section 173(2), Cr PC in a case relating to E.C. Act. The Police Report in that case by itself did not disclose the details of the offence on which police submitted charge-sheet for the offence of the accused. The SDM took cognizance against the appellants before the Supreme Court after looking into the police diary, etc. and the appellant filed quashing application in this Court on the ground that the Police Report submitted by the IO did not disclose any offence and the Court was not competent to look into any other paper while taking cognizance under Section 190, Cr PC read with Section 11 of the E.C. Act. and the appellant filed quashing application in this Court on the ground that the Police Report submitted by the IO did not disclose any offence and the Court was not competent to look into any other paper while taking cognizance under Section 190, Cr PC read with Section 11 of the E.C. Act. The Supreme Court held that Section 190(l)(b) of the Code demonstrably manifests the legislative intention that the Magistrate can take cognizance under Section 190(l)(b) upon a Police Report meaning thereby the report submitted bv the Police Officer under Section 173(2) of the Code. Hon ble Supreme Court formulated the question involved as follows : "The question is, if such Police Officer investigating into an offence which the Act has declared as cognizable submits a report in writing under Section 173(2) disclosing an offence under the Act and requesting for proceeding further into the matter, would it satisfy the requirements of Section 11 for taking cognizance of the offence so disclosed." 11. The Supreme Court held that the report under Section 173(2) must disclose the offence of which cognizance can be taken by the Magistrate. Apparently, Section 11 would stand fully complied with. 12. The Hon ble Supreme Court commented "...Therefore, the statutory requirement of the report under Section 173(2) would be complied with if the various details therein prescribed are included in the report. The report is an intimation to the Magistrate that upon investigation into a cognizable offence the Investigation Officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 179(2) purports to be an opinion of the Investigating Officer that as for as he is concerned, he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the witnesses, the nature of the offence and a request that the case be tried, there is compliance with Section 173(2).".(Emphasis added). 13. The above-quoted observation supports the view consistently taken by this Court that in absence of Police Report to the effect that the offence against the accused is proved, the Court has no power to take cognizance. 14. 13. The above-quoted observation supports the view consistently taken by this Court that in absence of Police Report to the effect that the offence against the accused is proved, the Court has no power to take cognizance. 14. The final report submitted by the police that no offence is made out cannot be construed as "Report of Fact" constituting such offence. The report in question must disclose that some offence has been committed and then the Court has jurisdiction to take cognizance and if the report does not indicate that the offence has been committed the question of taking cognizance does not arise. However, there is no direct authority of the Supreme Court as to what will be the position when final report is submitted by the police. 15. Mr. Ajay Thakur, learned Counsel for the complainant argued with all emphasis that Section 11(15) also provides that Special Court can take cognizance under Section 190(l)(b), Cr PC. The position is now well settled that upon receipt of a Police Report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(l)(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 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 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 under Section 190(l)(b) and direct the issue of process to the accused. 16. The contention of Mr. Thakur is supported by the decisions of the Supreme Court in the case of Abhinandan Jha V/s. Dinesh Mishra, AIR 1968 SC 117 and H.S. Bains V/s. State, AIR 1980 SC 1883 . The Supreme Court in Kamlapati Trivedi V/s. State of West Bengal, AIR 1979 SC 777 held that the Magistrate is fully competent to take cognizance of the disclosed offences under Section 190(l)(b). The Supreme Court in Kamlapati Trivedi V/s. State of West Bengal, AIR 1979 SC 777 held that the Magistrate is fully competent to take cognizance of the disclosed offences under Section 190(l)(b). But none of these two decisions are in relation to the E.C. Act which specifies special procedure for taking cognizance by the Special Court under Section 11 of the E.C. Act. 17. The other High Court might have taken different view, but so far this Court is concerned, there is consistent view that the Special Judge has no power to take cognizance in a case where police submits final report exonerating the accused. I do not think it safe to refer the matter to the Division Bench although it must be conceded that the point canvassed by Mr. Thakur is supported by a large number of decisions of the Supreme Court, some of which have been referred to above but are not in relation to E.C. Act. 18. In the instant case, the order of the Special Judge is bad for other reason also. The Investigating Officer was directed to submit final report. The Special Judge was satisfied that there was sufficient material to show that the accused persons named in the FIR had committed offence. He found no basis to believe the supervision note of the S.P. and the special procedure because there was protest petition. The illegality to be noticed in the order is that nowhere in the order the Special Judge has referred to specific evidence collected during investigation against the petitioner. He took cognizance because there was protest petition. The impugned order of the Special Judge is, therefore, legally unsound and cannot be sustained. 19. This application is allowed and the order of the Special Judge taking cognizance is quashed.