JUDGMENT : DEEPAK ROSHAN, J. Heard learned counsel for the parties. 2. This revision application is directed against the order dated 02.06.2007 passed by learned Chief Judicial Magistrate, Deoghar in G.R. Case No. 436 of 2005 corresponding to T.R. No. 443 of 2007; arising out of Deoghar P.S. Case No. 147/2005 dated 12.06.2005 under Sections 341, 342, 323, 348, 352, 379 and 386/34 IPC; whereby the petition dated 23.03.2007 filed under section 258 Cr. P.C. has been rejected by the learned Chief Judicial Magistrate, Deoghar. 3. The brief facts of the case are that the petitioners were made accused on the basis of a written report submitted by one Sanjay Kumar Sinha-0.P. No. 2 before the Officer In-charge, Town Police Station, Deoghar for the alleged offence u/s 341, 342, 323, 348, 352, 379 & 386/34 of the Penal Code, 1860 against which a petition u/s 258 Cr. P.C. was filed which was rejected by the learned Chief Judicial Magistrate Deoghar. 4. Further fact is that a case being Deoghar P.S. Case No. 147/2005 dated 12.06.2005 u/s 341, 342, 323, 348, 352, 379, 386/34 of the IPC was registered as State v. Ashok Kumar Singh The date and time of occurrence was 12.06.2005 at 9 : 30AM. 5. After investigation, a final report being Final Report NO. 86/2006 dated 06.03.2006 was submitted as ‘false’. At this stage it is pertinent to mention here that the informant apprehending that since accused persons were powerful as such, police is not taking action against them so he also filed a protest-cum-complaint petition on 19.07.2005. 6. Further fact of the case is that the final form was received in the office of the Court on 23.03.2006. Thereafter, notice to the informant was issued fixing the date as 28.04.2006. On 28.04.2006, the P.O. was transferred and therefore, again date was fixed on 15.06.2006 by issuing notice to the Informant. On 15.06.2006, the Informant was absent. On 20.07.2006 the Informant was present but the date was fixed on 30.07.2006 for hearing on protest petition. On 30.07.2006/31.07.2006 the record was placed for hearing, the Informant was in appearance, and the hearing was made on protest petition and the case was fixed for 11.08.2006 for orders. On 11.08.2006 the learned Chief Judicial Magistrate took cognizance of the offence u/s 323 and 342 of the IPC by cancelling the jurisdiction of Gram panchayat, issuing process against the accused persons. 7. On 11.08.2006 the learned Chief Judicial Magistrate took cognizance of the offence u/s 323 and 342 of the IPC by cancelling the jurisdiction of Gram panchayat, issuing process against the accused persons. 7. Learned counsel for the petitioners submits that the legal question falls for consideration before this Court is that as to what is the power vested with the Court to take cognizance of the offence under the Criminal Procedure Code, 1973. Learned counsel submits that in the instant case, after the investigation, police had submitted the final form which was accepted by the learned trial Court, however, the Court has taken cognizance on the contents of the case diary which is against the procedure of Cr. P.C. and referred to chapter XIV of Cr. P.C. For brevity, relevant paragraph is quoted hereinbelow: – CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS 190. Cognizance of offences by Magistrates - (1) 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-section (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; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 8. Learned counsel contended that a case can be said to be “instituted” in a Court only when the Court takes cognizance of the offence alleged therein. An examination of the provisions of Section 190 makes it clear that a case is instituted in the Court of a magistrate when the Magistrate takes cognizance of the fact which constitute such offence. Under Section 190(1) cognizance of offences can be taken by the Magistrate in three ways, upon receiving a private complaint of facts constituting an offence, or upon a police report of such facts made by any police officer, or upon the Magistrate's own knowledge or suspicion of such offence having been committed. Under Section 190(1) cognizance of offences can be taken by the Magistrate in three ways, upon receiving a private complaint of facts constituting an offence, or upon a police report of such facts made by any police officer, or upon the Magistrate's own knowledge or suspicion of such offence having been committed. Thus, under Section 190(1), a case is instituted in the Court of a Magistrate when he takes cognizance of the offence alleged therein either upon receiving a private complaint of the facts constituting such offence, or upon a report of such facts made by any police officer. It is now well settled that when a petition of complaint is filed before a Magistrate under Section 200 of the Code, the question whether he can be said to have taken “cognizance” under Section 190(1)(a) of the offence alleged in the complaint depends upon the purpose for which he applies his mind to the complaint. If the Magistrate applies his mind to the complaint for the purpose of proceeding with the complaint under the various provisions of Chapter XVI of the Code, he must be held to have taken cognizance of the offences mentioned in the complaint. He submits that in view of the provisions of Chapter XIV if the Magistrate takes cognizance u/s 190(1)(a) upon receiving a complaint of facts, he is required to proceed under Chapter XV and therefore the first requirement of a Magistrate is to examine the complainant. 9. He contended that here is the case where the Magistrate called upon the informant by issuing notice, who appeared and finally on the protest petition which was filed on 15.06.2006; hearing on the protest petition took place on 30.07.2006/31.07.2006 by the learned Chief Judicial Magistrate and therefore, the only recourse left with the Magistrate to take cognizance of the offence on the complaint u/s 190(1)(a) upon receiving the complaint of facts which constitute such offence; by the method of Chapter XV and not other way i.e. proceeding with the complaint u/s 200 of the Cr. P.C. and no other way. 10. He contended that in the present case though the Magistrate has heard the Informant-Complainant on protest petition but without proceeding with the case under Chapter XV of the Cr. P.C. and no other way. 10. He contended that in the present case though the Magistrate has heard the Informant-Complainant on protest petition but without proceeding with the case under Chapter XV of the Cr. P.C. the cognizance of the offence u/s 323 and 342 of the IPC was taken on 11.08.2006 on the basis of the materials available in the case diary and not after examination of the complainant. He further submits that now the law has been settled in this regard by different High Courts and Hon'ble Supreme Court in the case of R.R. Chari v. the State of Uttar Pradesh on 19th March, 1951 reported in 1951 SCC 250 : AIR 1951 SC 207 , Jamuna Singh v. Bhadai Sah, AIR 1965 SC 1541, Mahesh Chand v. B. Janardan Reddy, (2003) 1 SCC 734 : AIR 2003 SC 702 , Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1958 Ori 11 Orisa High Court in the case of Mahavir Prasad Agrawal v. the State of Orisa decided on 20.08.1957. 11. He lastly submits that in this case the genesis of the occurrence is also against the informant, inasmuch as, an FIR was instituted against the Informant Sanjay Kumar Sinha and Vinay Kumar Sinha being Deoghar P.S. Case No. 162/2005 dated 25.06.2005 u/s 447, 427, 379, 511/34 of the IPC (Annexure - 3) to the present case on the basis of an application filed by the Circle Officer, Deoghar namely Ravi Shankar Vidyarthi dated 24.06.2005 with respect to the land being “Gochar” on the basis of the report of the Halka Karmchari-Shri Suresh Chandra Mandal. The case was investigated by the Deoghar Police and a charge-sheet was submitted against the informant and Vinay Kumar Sinha being Chargesheet No. 52/2006 dated 20.02.2006 u/s 447, 427, 379, 511/34 of the IPC and accordingly the charges were framed against them (Annexure - 3 Series to the Revision petition). Therefore, no case can be said to be made out against the petitioners and the cognizance taken by the Ld. Magistrate is contrary to the provisions of settled principles of law. 12. Learned Addl. P.P. submits that there is no error in the finding given by the learned court below, as such, the order cannot be set aside. Therefore, no case can be said to be made out against the petitioners and the cognizance taken by the Ld. Magistrate is contrary to the provisions of settled principles of law. 12. Learned Addl. P.P. submits that there is no error in the finding given by the learned court below, as such, the order cannot be set aside. She further relied upon the judgment passed in the case India Carat (P) Ltd. v. State of Karnataka, reported in (1989) 2 SCC 132 , wherein the Hon'ble Apex Court has held that despite police report that no case is made out against the accused, Magistrate can take cognizance of offences under section 190(1)(b) taking into account the statement of witness made under police investigation and issue process. 13. Having heard learned counsel for the parties and after going through the impugned order including the evidence available on record, it clearly transpires that the submission made by the learned counsel for the petitioner that after the investigation police had submitted the final form and the same was accepted by the learned Court below is not correct, inasmuch as, from the order of cognizance dated 11.08.2006 it clearly transpires that by rejecting the final report, the learned court below has taken cognizance on the basis of material available in the case diary and found prima facie case under Sections 323 and 342 IPC against all the three accused persons. For better appreciation operative paragraph of the order of cognizance is quoted hereinbelow: ^^esjs fopkj ls vfHk;qDrx.k ds fo#) Hkk0 n0 fo0 dh /kkjk&342 ,oa 323 ds varxZr vijk/k dkfjr djus dk ÁFke n`"V~;k ekeyk curk gS rFkk vuqala/kkudrkZ }kjk nkf[ky ,Q-vkj 86&05 fnukad &16-03-06 ¼vafre Áfrosnu½ dk ^^vlR;** vLohd`r djrs gq, Hkk0 n0 fo0 dh /kkjk &323 ,oa 342 ds varxZr xzke iapk;r dk {ks=kf/kdkj dks fujLr djrs gq, vijk/k dk laKku fy;k tkrk gSA 14. Learned counsel for the petitioner submitted before this Court that the cognizance is bad in law in view of Section 190 (b) of the Cr. P.C., as after completion of the investigation police submitted the final report, which was accepted by the learned trial court and thereafter protest cum complaint petition was filed by the informant on 20.07.2006 and thereupon the trial court vide order dated 11.08.2006 has taken cognizance of the offences on the complaint-cum-protest petition which is not in accordance with law. P.C., as after completion of the investigation police submitted the final report, which was accepted by the learned trial court and thereafter protest cum complaint petition was filed by the informant on 20.07.2006 and thereupon the trial court vide order dated 11.08.2006 has taken cognizance of the offences on the complaint-cum-protest petition which is not in accordance with law. He also submitted that when the final report was accepted by the learned trial court then it cannot take cognizance on the basis of material collected during investigation or the case diary. He also contended that the order of cognizance, which the court has passed relying upon the case diary is bad and cannot be allowed to sustain. 15. These submissions of the petitioners cannot be accepted in view of the fact that after going through the order referred to in para-6 hereinabove it clearly transpires that by rejecting the final report filed by the police, learned trial court has found enough material to make out the prima facie case against all the accused persons. 16. Today during course of hearing learned counsel for the petitioners draws attention of this court towards order dated 11.08.2006 and submits that order start with the sentence ‘the said order being passed on protest petition’; this itself shows that court below has accepted the final report. In this regard relevant part of the order quoted hereinbelow: – orZeku ekekyk lwpd lat; dqekj flUgk ds fojks/k i= ij vk/kkfjr gSA vfHkys[k dk voyksdu fd;k] ftlls fofnr gksrk gS fd lat; dqekj flUgk ¼lwpd½ us fyf[kr Áfrosnu ds vk/kkjk ij nsopj Fkkuk dkaM la0&147@05 vfHk;qDrx.k] v'kksd dqekj flag]--- vuqla/kkudrkZ us vuqla/kku ds i'pkr~ vafre fjiksVZ la0&86@06 fnukad&16-03-06 ds ek/;e ls vlR; lefiZr fd;k tks U;k;ky; esa fnukad 23-03-06 dks ÁkIr gqvk ,oa lwpd dks uksfVl fuxZr djus dk vkns'k fn;k x;kA lwpd fnukad&20-07-06 dks mifLFkr gq, rFkk fnukad&19-07-05 dks fojks/k lg ifjokn i= dks Ápkfyr fd;sA 17. At this stage it is also relevant to refer few paragraphs of the protest petition which was filed much before the filing of final form. For brevity para 9 and 10 are quoted hereinbelow: – “9. That inspite of the institution of the F.I.R. being Town P.S. Case No. 147 of 2005 State v. Ashok Kumar Singh, against all the accused persons under sections 341, 342, 323, 384, 352, 379, 386/34 IPC. For brevity para 9 and 10 are quoted hereinbelow: – “9. That inspite of the institution of the F.I.R. being Town P.S. Case No. 147 of 2005 State v. Ashok Kumar Singh, against all the accused persons under sections 341, 342, 323, 384, 352, 379, 386/34 IPC. The police has not taken any step to arrest the accused persons. 10. That the accused no. 1 is a member of Jharkhand Administrative Service who is a most influential and monied man. So the complainant has reasonable apprehension that the police at the collusion of the accused persons, may submits final instead of chargesheet, hence this protest cum complaint petition is filed in your Honour's court.” 18. From the above paragraphs and also from the fact of the case it transpires that on apprehension of the informant a protest petition was filed which was kept on record. However, after receiving final report in order to give opportunity of hearing to both the parties and after rejecting final report, learned Magistrate took cognizance in the matter after relying the content of case diary which is in accordance with law. In this regard reference can be made to the order passed by the Hon'ble Apex Court in the case of Gangadhar Janardan Mhatre v. State of Maharashtra, reported in (2004) 7 SCC 768 wherein it has been categorically held that upon receipt of a police report under Section 173(2), a Magistrate is entitled to take cognizance of an offence under Section 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 and 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, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The relevant para is quoted herein below; “9. …… The report may on the other hand state that according to the police, no offence appears to have been committed. The relevant para is quoted herein below; “9. …… The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again 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 under Section 156(3). The position is, therefore, 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(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, exercise his powers under Section 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 under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also……..” 19. Thus, it can be safely opined that since the protest cum complaint petition was filed on 19.07.2005, was premature petition as it was filed before the final report and that is the reason it was not entertained by the learned trial court and the argument of learned counsel for the petitioner that the complaint cum protest petition was filed on 20.07.2006 is not correct. 20. 20. In view of the aforesaid discussions and after going through the impugned order and documents available on record, this Court holds that the court below has not committed any error in rejecting the petition filed under section 258 Cr. P.C. The petitioner has failed to point out any illegality in the order taking cognizance, as such no interference is required and the instant application is rejected. The learned trial court is directed to proceed in the matter in accordance with law. It goes without saying that since the matter is very old, as such the trial be completed at an early date preferably within a period of 9 months from the date of receipt of copy of this order/LCR. 21. Let the copy of this order along with the L.C.R. be communicated to the court below forthwith.