STATE OF RAJASTHAN Vs. CHATURBHUJ

JUDGEMENT

(1.) THE above cases raiso a common question as to maintainability of the complaint under Sec 182, I. P. C. , by the Sub-Inspector when a final report has been accepted by the Magistrate after investigation.

(2.) I may state the facts as stated in S. B. Criminal No. 695 of 1980 - The State of Rajasthan vs. Chaturbhuj. A report was lodged by Chaturbhuj on 27. 10. 1977 at the Police Station, Barlut, on which a case under sections 420 and 406, I. P. C. , was registered and investigation was under taken. On investigation the case was found to be false, so the S. H. O. Barlut, presented a complaint under Sec. 182, I. P. C. , against the accused Chaturbhuj. During the trial of the accused an application was moved by his counsel on 9. 6. 1980, in which a plea was raised that as the final report was accepted by the Court, so the complaint under Sec. 182, IPC, could be lodged only by the Court and the complaint by the S. H. O. was not maintainable. The learned Munsif and Judicial Magistrate, Sirohi, after hearing the parties allowed the application and held that the complaint by the S. H. O. was not maintainable and cognizance for that offence was barred under Sec. 195, Cr. P. C. The accused was, therefore, acquitted. As such, this appeal after grant of leave to appeal has been filed by the State challenging the acquittal of the accused-respondent.

(3.) THE trial Magistrate has referred to a citation 1979 Allahabad Criminal Cases (SC) 49 laying down that the order accepting the final report under Sec. 173, Cr. P. C, is a judicial order. That law report has not been made available to me. This question was left open by the Supreme Court in M. L. Sethi vs. R. P. Kapur (3) in para 31 at page 539, after noting the view in State vs. Vipra Khimji (4) and State vs. Murlidhar Govardhan (5 ). Though in M L. Sethi's case (supra) the position was also alternatively considered by assuming that the order of acceptance of final order is a judicial order. Even if it be accepted in the present case that the order accepting the final order is a judicial order, still it cannot be said that offence under Sec. 182, I. P. C, does not arise. If a case comes both under sections 211 and 182, it is open to the public servant to whom information is given to file complaint for offence under sec. 182, I. P. C, cognizance of which will be taken under Sec. 195 (1) (a), Cr. P. C, and in such a case the Magistrate will not be justified in acquitting or discharging the accused on the sole ground that the accused should have been prosecuted under Sec. 211. I. P. C. , on a complain to by the Court. Viewing the matter in any manner, in my opinion, the orders of acquittal or discharge cannot be upheld and deserves to be set aside.