KISHAN RAO Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner before this Court is the accused in the trial Court. A charge-sheet was laid against him by the Station House Officer, Gangavathi before the learned First Class Magistrate, Gangavathi, alleging that he had committed an offence under S. 409 I.P.C. The learned Magistrate took cognizance of the offence and wanted to proceed with the case under section 251-A of the Code of Criminal Procedure. A petition was presented on behalf of the accused contending that the Court had no power to proceed with the case, as earlier, the learned Magistrate had accepted the "B" Report submitted by the Police with regard to the same offence.

(2.) Sri M.M. Jagirdar learned counsel for the petitioner, has contended that the learned Magistrate had no jurisdiction to proceed with the charge-sheet as he had earlier accepted the "B" Report submitted by the police and ordered that the case be closed. He argues that the order of the learned Magistrate is a judicial order and the Magistrate is not entitled to review the same. He states that in the instant case there is no dispute that no fresh investigation was made or new material discovered by the police after the submission of the "B" Report to justify the reopening of the matter and filing of a fresh charge-sheet. He contends that the view of the lower Court that the order passed by it accepting the "B" Report is only an administrative order, is wrong. Finally he submits that even assuming that the Magistrate had power to take cognizance and proceed with the charge-sheet, since no fresh material or evidence has been discovered against the petitioner, it is a clear case of abuse of the process and the High Court should quash the said proceedings.

(3.) Sri Jagirdar has relied on State v. Muralidhar Govardhan, AIR 1960 Bom 240 in support of his contention that the acceptance or refusal by a Magistrate "B" Report submitted by the police is a judicial order and not an administrative one. In that case, their Lordships of the Bombay High Court have stated that an order passed by the Magistrate on a report under section 173(1) Cr.P.C. requesting that summary "A", "B" or "C" be issued is in its very nature a judicial order and not an administrative order. This position is not controverted by the learned High Court Government Pleader. There is no doubt that an order passed by the Magistrate accepting the "B" report is a judicial order and not an administrative order.