VISHNU MURYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the order passed by the learned Additional Sessions Judge, Jodhpur dated 28th February 1989 whereby the learned Additional Sessions Judge has set aside the order of the learned Additional Chief Judicial Magistrate dated 16th December 1987. By the order dated 16th December, 1987, the learned Magistrate recalled his order dated 2nd September 1987, whereby the learned Magistrate accepted the final report against the accused petitioner and in the same breath directed that on protest petition the statement under section 200 and 202 Cr. P. C. may be recorded, for that he posted the case on 17th September, 1987.

(2.) THE brief facts, which are the necessary for the disposal of this revision petition, are that a complaint" was filed on 15th May, 1987 against the petitioner before the Additional Chief Judicial Magistrate, alleging commission of the offence under sec. 406, 409, 467, 468, 471 and 420 I. P. C. on this the learned Magistrate sent the matter to the police under s. 156 (3) Cr P. C. for investigation. THE police after detailed investigation, filed a final report on 24th July 1987. At the same time the petitioner also filed a protest petition that the final report should not be accepted. THE learned Magistrate, after hearing the complainant on his protest petition, accepted the final report on 2nd September 1987 by passing a detailed and speaking order. Against this order a separate revision has already been filed, which is pending before the Sessions Court and in the same breath he passed the order on the protest petition let the statement under section 200 and 202 Cr. P. C. be recorded and posted the matter on 17th September 1987. From time to time certain dates were fixed for recording the statement. THEreafter, an application was filed on behalf of the accused that on 2nd September 1987 wherein it was alleged that the learned Magistrate having accepted the final report, after hearing the protest petitioner (complainant), then the learned Magistrate cannot take the evidence under s. 200 & 202 Cr. P. C. as the order passed by the learned Magistrate, accepting the final report, was a judicial order and that order cannot now be reviewed. An objection was also raised that the accused-petitioner cannot be heard in the matter, as he has no locus standi till the summon is issued against him taking the cognizance. THE learned Magistrate accepted this objection, and held that in view of the fact that he has accepted the final report, which is a judicial order, as such he cannot review his order & record the statement of the complainant under sec. 200 and 202 Cr. P. C. As such he recalled his order dated 2nd September 1987 and held that since he accepted the final report, he had no jurisdiction now to proceed in the matter. Aggrieved against this order dated 16th December 1987 a revision was filed before the learned Sessions Judge, Jodhpur which came to be disposed of by the Additional Sessions Judge, Jodh-pur and the learned Additional Sessions Judge accepted the revision, set aside the order dated 16th December, 1987 and directed the complainant to appear before the Magistrate on 27th March, 1989 and further proceedings may be commenced by his order dated 28th February 1989. It is this order, which has been sought to be challenged by filing the present revision petition by the accused petitioner.

(3.) THERE is one more aspect, which I may mention before closing, that recently their Lordships of Supreme Court in Bhagwant Singh vs. Commr. of Police (7) have held that in the event of police filing final report then Magistrate should give notice to the complainant. In case the Magistrate accepts the final report without notice to the complainant and complainant files a protest petition under section 200 Cr. P. C. then it will not bar further inquiry into the matter though it is a judicial order. This is because of breach of the principle of natural justice as complainant does not know that how police has investigated the matter. Thus, it is clarified that this exception is only open, when final report is accepted without notice to complainant.