JUDGMENT : P.K. Tripathy, J. - In this application u/s 482 of the Criminal Procedure Code, 1973 (in short, 'the Code') petitioners have prayed to quash the order dated 30.9.1997 passed by learned S.D.J.M., Berhampur in G.R. Case No. 506 of 1997 where petitioners are the accused persons and opposite party No. 2 is the informant and opposite party No. 1 the State of Orissa is the Complainant/Prosecutor. 2. Petitioners and opposite party No. 2 are the employees under the Telecom Department and by 2.5.1997 all of them were posted at Berhampur. Opposite party No. 2 lodged FIR alleging that in the night of 2.5.1977 while he was on duty inside the Exchange, petitioners came and picked up quarrel with him. He sent intimation to his sister, a co- employee, who arrived there with their nephew and petitioners in furtherance of that quarrel assaulted opposite party No. 2, his sister and nephew and in that process also outraged the modesty of his sister. The said FIR led to registration of G.R. Case No. 406 of 1977. On completion of investigation final form (charge-sheet) for the offence u/s 323, IPC was filed by the Investigating Officer on the ground that during the course of investigation he found that independent witnesses stated about the quarrel, but except the complainant party none else stated about the assault and outraging of the modesty and that Doctor has given his opinion that the injuries found were simple. On receipt of the aforesaid charge-sheet on 11.8.1997 till the date of passing of impugned order on 30.9.1997 the order-sheets reads as hereunder : "Order No. 2. dt. 11.8.1997 The record is put up today. FF Non-Cog. u/s 323, IPC is received from the I.O. along with CDs. and other connected papers. Perused the documents of the case. Issue notice to the complt (T) IIC B. Town P.S. for I.O. to file protest petition against the FF if he desires to do so in this Court by 22.8.1997. Put up on the date fixed. Order No. 3. dated 22.8.1997 S.R. not back. Issue fresh notice to the complainant by UCP fixing to 5.9.1997.. Order No. 4. dated 5.9.1997 No step is taken against the FFP.O. is on transfer. Put up on 30.9.1997 before P.O. further orders. Order No. 5. dated 30.9.1997 The record is put up today FF non-cog. Order No. 3. dated 22.8.1997 S.R. not back. Issue fresh notice to the complainant by UCP fixing to 5.9.1997.. Order No. 4. dated 5.9.1997 No step is taken against the FFP.O. is on transfer. Put up on 30.9.1997 before P.O. further orders. Order No. 5. dated 30.9.1997 The record is put up today FF non-cog. u/s 323, IPC submitted by Police is not accepted cognizance of offences u/s 451/323/506/354/34, IPC is taken against the accused persons (1) Trinath Sethi - 49 S/o. Sima Sethi of Golanthara P.S. Golanthara (2) Simadri Behera - 50, S/o. Bipina Behera of Chatrapur Gilt Peta Sahi P.S. Chatrapur (3) M. Subhramayam - 54 S/o. M. Satyanarayan of Chatrapur P.S .Chatrapur all are now Supervisor of Telephone Bhaban Berhampur P.S. B. Town,Dist. Ganjam Office to prepare the copies of P.P. Issue summons to the accused persons fixing to 21.1.1998 for their appearance put up on the date fixed." 3. Learned counsel for the petitioners referring to Annexures 1 to 4 stated that relating to the self-same incident at the same place, petitioner No. 1 also lodged a written report(FIR) which was registered as Berhampur Town P.S. Case No. 83 of 1997 Under Sections 451/323/379/34, IPC read with Sec. 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'Act, 1989) corresponding to G.R. Case No. 405 of 1997 of the Court of S.D.J.M., and G.R. Case No. 33 of 1997 of the Court Special Judge under the Act, 1989. After completion of investigation, charge-sheet for the offences u/s 323, IPC was filed against opposite party No. 2 alone. Since initially it was registered u/s 3 of the Act, 1989, learned Special Judge, Berhampur vide his order dated 17.9.1997 (Annexure-4) sent it to the Court of S.D.J.M., Berhampur and the matter is subjudiced in. that Court, where a protest petition was filed by the petitioner No. 1 against opposite party No. 2 and two others is also subjudiced vide I.C.C. No. 87 of 1997. 4. that Court, where a protest petition was filed by the petitioner No. 1 against opposite party No. 2 and two others is also subjudiced vide I.C.C. No. 87 of 1997. 4. It was argued by the learned counsel for the petitioners that the above quoted order of cognizance against the present petitioners in G.R. Case No. 406 of 1997 is illegal and non-sustainable because; (i) after investigation the I.O. has submitted charge-sheet for the offence u/s 323, IPC and inspite of issue of notice no protest petition or complaint petition has been filed by the opposite party No. 2 challenging correctness of the aforesaid charge-sheet, and (ii) without assigning any reason, learned S.D.J.M. has not accepted the charge-sheet for the offence u/s 323, IPC and has taken cognizance of the offences Under Sections 451/506/354/34, IPC, besides the offence u/s 323/34, IPC. 5. Learned counsel appearing for opposite party No. 2 as well as learned Standing Counsel appearing for opposite party No. 1 on the other hand advanced argument that at the stage of taking cognizance, the cognizance taking Magistrate is neither required to make an elaborate enquiry i.e. thread bare scrutiny of the materials in the case diary, nor he is bound to follow the opinion of the I.O. On the other hand, as argued, the cognizance taking Magistrate is supposed to peruse the materials and the case diary and to take cognizance of the offence which is prima facie made out irrespective of the fact whether such offence has been noted or not in the charge-sheet. In the case at hand notwithstanding the fact of not filing a protest petition by opposite party No. 2, since learned S.D.J.M. on perusal of the statement available in the case diary found existence of a prima facie case for the aforesaid offences, besides the offence u/s 323/34, IPC, therefore, learned S.D.J.M. has not committed any illegality and the impugned order is not liable to be interfered with by invoking the inherent power. 6. It is needless to state that the problem projected by the petitioner and resisted by the opposite party is squarely governed and covered by Clause (b) of Sub-section (1) of Section 190 of the Code. 6. It is needless to state that the problem projected by the petitioner and resisted by the opposite party is squarely governed and covered by Clause (b) of Sub-section (1) of Section 190 of the Code. After receipt of the Police Report i.e. final form (be it final report or the charge sheet) Cognizance taking Magistrate is required to peruse the statement and other relevant documents .available in the case diary with due application of judicial mind and to take cognizance of such offences which are prima facie made out notwithstanding a different or contrary opinion expressed in the final form. At that stage, the cognizance taking Magistrate after perusal of the record may not take cognizance of the offence and for reasons to be recorded, may direct for further investigations of the case by the same or other Investigating Agency or notice the complainant to file protest petition, if any. If a charge-sheet has been filed, normally a notice of the aforesaid nature to the informant/complainant is not issued to file protest petition, if any. However, if an order to that effect is passed, the reasons thereof must be indicated in the order of the Magistrate. Such an order need not be an elaborate one nor it is required to make a detail discussion about the materials available in the case diary. In that respect though an order is to be passed, but it should be a speaking order indicating clearly and unambiguously reasons in support of such a conclusion. An order passed whimsically or superficially i.e. without due application of mind cannot be regarded as a valid order, because at that stage, the cognizance taking Magistrate is required to apply his judicial mind to the facts in the case diary and thereafter to pass appropriate orders. However, it should not be deduced from the aforesaid discussion that after filing of a charge sheet by the Investigating Agency, if a complaint petition/protest petition is filed by the informant/complainant that is not to be entertained by the cognizance taking Magistrate. In other words, if a protest petition or complaint petition is filed that should be duly considered in accordance with law and should not be rejected in limine. 7. In other words, if a protest petition or complaint petition is filed that should be duly considered in accordance with law and should not be rejected in limine. 7. It is the settled position of law that at the time of taking cognizance upon a police report, the cognizance taking Magistrate is required to peruse the case diary and to find out the offence prima facie made out and to take cognizance of such offence and to issue process to the identified offenders in accordance with law. At that stage the Magistrate is not bound to follow the opinion of the Investigating Agency regarding the offence committed or the offenders, as the case may be. While dealing with the case diary at that stage, cognizance taking Magistrate has to take cognizance of the offence/offences which are prima facie made out. For doing that the cognizance taking Magistrate is not required to make a detailed documentation in his order nor he is required to write an order with explaining the reasons on the basis of which he is satisfied about existence of a prima facie case. 8. If the aforesaid legal position is properly applied in the present case, then the grievance of the petitioner appears to be non-existent. The entire thrust of argument advanced by the petitioner is that when on 11.8.1997, S.D.J.M. after perusal of the documents of the case issued notice to the complainant to file protest petition, if any, according to the petitioner, the self-same Court (may be different Judicial Officer) on 30.9.1997 should not have taken cognizance of the offence in the absence of a protest petition, for different offences though such offences were not quoted in the charge-sheet. 9. Aforesaid argument of the petitioner is not acceptable inasmuch as on 11.8.1997 learned S.D.J.M. did not apply his judicial mind to the materials in the case diary and he did not express any judicial opinion about the offences which are prima facie made out from the materials available in the case diary. Though in the meantime, notice was sought to be issued to the informant, but there is nothing in record indicating that such notice was served on the informant/opp. party not till 30.9.1997, when the impugned order was passed. Though in the meantime, notice was sought to be issued to the informant, but there is nothing in record indicating that such notice was served on the informant/opp. party not till 30.9.1997, when the impugned order was passed. The Presiding Officer who joined in the post in the meantime, perused the case diary and passed order taking cognizance of the offences as already indicated which are in addition to the offence quoted in the charge- sheet. Order dated 30.9.1997 is also not in conflict with, in true sense, the order dated 11.8.1997. Therefore, principle of constructive res judicata cannot be attracted. Above all, during the course of hearing learned counsel for the petitioner did not argue by referring to the materials in the case diary that a prima facie case for the offence of which cognizance has been taken is non-existing. In other words, petitioner has not advanced any argument regarding absence of prima facie case for the offence of which learned S.D.J.M. took cognizance on 30.9.1997. Hence there is nothing to interfere with the impugned order. 10. If at all, the petitioners are convinced that a prima facie case is not made out against them for the offences of which cognizance has been taken vide impugned order dated 30.9.1997, if so advised, they may approach the cognizance taking Magistrate to recall (he order of cognizance in accordance with the ratio in the case of K.S. Mathew v. State of Kerala : 1992 (5) OCR 66. 11. For the reasons indicated above, this Court is not inclined to set aside the order dated 30.9.1997 by invoking the power u/s 482 of the Code. However, it is observed that, if so advised, petitioner may file an application setting forth the grounds in challenging the cognizance order within two weeks hence and if such application is filed, learned S.D.J.M. shall do well to hear and dispose of the same in accordance with law within two weeks from the date of its filing. Learned S.D.J.M. while deciding the issue, need not be influenced by any thing discussed in this order and he shall take independent decision in the matter. 12. The criminal misc. case is disposed of accordingly.