NARAYAN RAMCHANDRA KARAMBELKAR Vs. STATE

JUDGEMENT

(1.) "Whether an order passed by a Magistrate discharging an accused on a report made by the police undersection, 173, Criminal Procedure Code, is an administrative or ajudicial order," is the question which arises in these two criminal revisions Nos. 48 of 1966 and 235 of 1969, which are being heard together and will be disposed of by this order.

(2.) In Criminal Revision No. 48 of 1966 the facts in brief are that the police registered a case under section 406, Indian Penal Code, against the petitioner and another person on the basis of a report lodged by Sqn. Ldr. P.S. Bhinder on September 3, 1963. On October 20, 1963, the petitioner, who had been arrested by the police on the basis of the said report, was released on bail. On March 15, 1965, the police made a report to the Subdivisional Magistrate staling that there was no case against the petitioner and he might be discharged. By his order dated April 16, 1965, the Subdivisional Magistrate discharged the petitioner. The police thereafter filed a Chalan against the petitioner's co-accused, Balbir Singh, under section 406, Indian Penal Code. The learned Magistrate on October 20, 1965, while hearing arguments for farming a charge against Balbir Singh, went through the documents referred to under section 173 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). He was of the opinion that a case under section 408, Indian Penal Code, was made out against the petitioner and directed the issue of bailable warrants for his appearance in Court. The petitioner duly appeared and raised an objection that in view of the previous order dated April 16, 1965, discharging him, the learned Magistrate had no jurisdiction to summon him as an accused as the prosecution never filed any revision against the said order of discharge. The Magistrate overruled this objection holding that the previous order of discharge was an administrative and not ajudicial order. The petitioner's revision petition was also dismissed by the learned Additional Sessions Judge.

(3.) When the case came up before Ansari, J" he noticed that be bad referred a similar question to a larger Bench in K.C. Sood v. State, Criminal Revision No. 519 of 1968 which was decided on September 27, 1970 (1) but this question was left undecided as it was found unnecessary to express any opinion on it. Feeling that the question is an important one on which there is a divergance of opinion among the several High Courts, he decided to refer the case to a larger Bench.