BALDEV KISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference made by a learned Single Judge of this Court by order dated 23-1-1990 that whether the acceptance of the final report by the Magistrate amounts to Judicial order on an administrative order. In this connection, the learned Single Judge referred to two inconsistent judgments one in Dadam Chand, Vs. State of Rajasthan (1) and another view taken by Hon'ble G. K. Sharma, J. , as he then was, in Jawahara Ram Vs. The State (2 ). In view of the inconsistency in the two judgments referred to above, the learned Singh Judge referred the matter to Hon'ble Chief Justice that let this controversy may be resolved by a larger bench. The Hon'ble Chief Justice in turn sent this case to the Division Bench for resolving this controversy whether the order passed by the learned Magistrate accepting the final report amounts to judicial order or an administrative order.

(2.) UNDER Section 173 Cr. P. C. when police submits a report whether any offence is made out or not, it is open for the Magistrate that he can accept the police report or he can take cognizance under Section 190 (1) (b) Cr. P. C. In any case he has to apply his mind and thereafter pass the order accepting or rejecting the final report. This discretion exercised by the learned Magistrate under the provisions of the Criminal Procedure Code, 1973 cannot be said to be an administrative order. The acceptance and non-acceptance involves exercise of dis-cretion by the learned Magistrate and he has to pass the order under the provisions of the Criminal Procedure Code. As such it cannot be said that the order passed by the learned Magistrate is an administrative order. Moreover, this question is no more res integra because in a series of judgments this Court has taken the view that the order passed by the learned Magistrate accepting the final report is a judicial order and is not an administrative order. In fact, the attention of Hon'ble G. K. Sharma, J. was not invited to the two judgments of this court in the case of Mangi Lal Vs. The State of Rajasthan (3) decided by Hon'ble M. C. Jain, J. and in Dadam Chand Vs. State of Rajasthan (Supra ). But subsequently when the attention of Hon,ble G. K. Sharma, J. was invited to the judgment of this Court is Dadam Chand's case (supra), Hon'ble G. K. Sharma, J. also took the view that the acceptance of final report by the learned Magistrate is a judicial order in Immamuddin vs. State of Raj. (4 ). In Jawahara Ram's case (supra) Hon'ble G. K. Sharma, J. , relied upon the judgment given by Hon'ble Farooq Hassan, J. in Gopal Ram Bhada vs. State of Raj. (5 ). and Hon'ble Farooq Hasan, J. relied upon the decision given by this Court in Pukhraj vs. Sheeshmal (6 ).

(3.) IN this case the attention of the Court was invited to Pukhraj vs. Seesmal (supra) and this judgment was explained and it was observed as under:- IN this case of (3) Pukhraj vs. Seesmal 1961 RLW 6, the matter related to the prosecution for the offence u/s. 211 IPC. The principle enunciated was that when a report is made to the police charging any of the persons with the commission of the offence and the police after investigation finds that report to be false and gets the report cancelled under the provisions of sec. 173 Cr. P. C. the Magistrate receiving the information and accepting it does not act as a Court and that the act of the Magistrate accepting the police report does not give rise to judicial proceedings. the offence of false charge preferred before the police in respect of which the report was made cannot be said to have been committed' in relation to the proceedings before a Court and a complaint of the Court is not necessary for prosecution of the offender u/s. 211 I. P. C. "