H.N.KAPOOR, J. - (1.) THIS is an application under section 482, Cr. P. C. for quashing the proceedings in Cr. Case No. 610-A of 1974 State v. Ganga Pd. and others pending in the court of Sri D. V. Sharma, First Addl. Munsif Magistrate, Elah. In this case a first information report was lodged and investigation was made by a Sub-Inspector of Police, who submitted a final report un­der section 169, Cr. P. C. The learned Magistrate, however instead of accepting the final report, passed the following order on 17-7-1974: "Let accused be summoned for 27-9-1974 under section s 147, 323, 452 and 352, I.P.C." There is no dispute on the point that the Magistrate had not taken cognizance under section 190 (1) (b), Cr. P. C. but had taken cognizance under section 190 (1)(c) of the Code.
(2.) LEARNED counsel for the applicants has argued that it was not open under the new Cr. P. C. to take cognizance by the Magistrate under section 190 (1) (c) on the basis of police papers and final report as the word 'suspicion' which occurred in section 190 (1) (c), Cr. P. C. (Old) has been deleted Section 190(1)(c), Cr. P. C. (Mew) reads as follows: "(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 of Fence. (c) upon Information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed." The controversy has been finally settled by their Lordships of the Supreme Court in the case of Abhinandan Jha v. Dinesh Misra (A.I.R. 1968 S.C. 117). It was-held in that case that a Magistrate could not direct the police to submit the charge-sheet under section 190 (1) (b) but it was open to the Magistrate not to accept the final report submitted by the polices and to take cognizance himself under section 190 (1) (c), Cr. P. C. In this respect the relevant observations made by the Supreme Court at page 123 are as follows: "There is certainly no obligation, on the Magistrate, to accept the re­port, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that the offence has been committed, he is entitled, not withstanding the opinion of the police, to take cogni­zance under section 190 (1) (c) of the Code.................. It is open to the Magistrate to take cognizance of the offence under sec­tion 190 (1) (c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been commit­ted."
(3.) SHRI Tejpal, learned counsel for the appellants has vehemently argued on the basis of these observations that the Sup­reme Court obviously said that cognizance could have been taken on suspicion when the police papers and the final report were before the Magistrate and that is why the Supreme Court had used the word 'suspect'. According to him, after the word 'suspicion' has been delet­ed from clause (c) of sub-section (1) of section 190, Cr. P. C., it is not open to the Magistrate to take cognizance on the basis of the police papers and the final report. In the present case, it is alleged that there was no protest petition and no other information before the Magistrate apart from the police papers and the final report. Sri Sushil Kumar, learned Addl. Govt. Advocate, has conceded that cognizance in the present case was not taken upon information received from any person other than the police officer. He has argued that in the present case it could be said that the Magistrate had taken cognizance upon his own know­ledge derived from the police papers and the final report which were before him. According to him, 'own knowledge' is wider than 'personal knowledge' and it includes 'knowledge' derived from documents. In support of his contention, he has placed reliance on the case of Dwarika Nath v. Income-tax Officer, Kanpur (A.I.R.1966 S.C. 81) in which their Lordships of the Supreme Court made the following observations while considering the words 'own knowledge' in the context of swearing of affidavits: "Department's own knowledge in rule 1(2) of Chapter XXII of the Rules is wide enough to apprehend the knowledge of the appellant derived from a personal of the relevant documents ; and the affidavit in ex-press terms disclosed and specified the documents, the source of the appellants knowledge. He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents.......................................It is, therefore, not correct to say that the facts stated in the affidavit are not based on the dependent's knowledge." ;