- (1.)THE following question has been referred to this Division Bench for decision:
Whether it is open to a Magistrate to take cognizance of an offence under Section 190 (1) (b) of the Code on the basis of a police report submitted before him by the police after formation of the opinion that in view of the material collected during the course of investigation, no case is made out for sending the accused for trial.

(2.)THE facts and circumstances under which the question has arisen may be briefly stated. One Basant Lai lodged the First Information Report No. 58 on 9th June, 1977, at Police Station, Theog, alleging offence under Section 348, I. P. C. against the present petitioners. As a result of the investigation conducted in the case, the Investigating Officer came to the conclusion that the case against the petitioners was politically motivated and that the allegations made in the FIR were all false. The Investigating Officer prepared his report under Section 173 of the Cr. P. C. recommending that the case registered against the petitioners be got cancelled and Shri Basant Lai at whose instance the FIR was registered be prosecuted under Section 182, I. P. C. The Investigating Officer forwarded the report to the Superintendent of Police, who agreeing with the recommendation of the Investigating Officer, passed that report on to the Judicial Magistrate, Theog, for cancellation of the case. It appears that along with the report were the documents as referred to in Sub-section (5) of Section 173 of the Cr. P. C. (the Code in short ). The report as also the documehts attached therewith were considered by the Judicial Magistrate who did not agree with the conclusion drawn by the Investigating Officer, that no case was made out against the petitioners and that the allegations in the FIR were false. According to the learned Judicial Magistrate, the evidence collected during investigation furnished grounds for proceeding against the petitioners under Section 384, I. P. C. The learned Magistrate was also of the opinion that besides an offence under Section 384, I. P. C. sufficient grounds existed for proceeding against Zalam Singh petitioner under Section 352, I. P. C. as well. The learned Magistrate accordingly vide his order dated 17th Feb. 1978, took cognizance of the offence under Section 190 (1) (b) of the Code and sum- moned the petitioners to appear before him. The learned Magistrate, after hearing the petitioners, framed charges under Section 384, I. P. C. against all the petitioners with an additional charge under Section 352, I. P. C. against Zalam Singh petitioner, on 21st Sept, 1978.
(3.)IT has been urged on behalf of the petitioners that where the police on the basis of the material collected during investigation come to the conclusion that no case is made out for sending the accused before a Magistrate for trial and submit their report under Section 173 (2) of the Code, to a Magistrate with their opinion and conclusion aforesaid, the Magistrate on the basis of such a police report has no jurisdiction to take cognizance of the offence investigated by the police. According to the learned Counsel for the petitioner, there are only two options open to the Magistrate on receipt of a police report of this type (known as final report), that is, (i) either to accept the police report and close the case or (ii) to order further investigation under Section 156 (3) of the Code. In the latter event, in case even after further investigation, the police stick to their original opinion, the Magistrate will have no option but to close the case.
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