MATHUR, J. - (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 ). The case of Pukhraj (supra) was considered by one of us (Bhatnagar, J.) in Dadan Chand's case (supra) and the position of law was explained while relying upon the various decisions of Hon'ble Supreme Court and other High Courts. Similarly, Hon'ble Jain, J. in Mangi Lal's case (supra)relying the various judgments upon of the Supreme Court also took the view that such an order is judicial in character and not of administrative in nature. It seems that while deciding the case of Jawahara Ram (supra, the attention of the Hon'ble Judge was not invited to the earlier judgments reported in Mangilal's case (supra) and Dadam Chand's case (Supra ). But when the attention of Hon'ble G. K. Sharma, J. was invited to the decision of this Court in Dadam Chand's case and Abhinadan Jha vs. Dinesh Mishra (7) he readily agreed with the reasoning given in the aforesaid case and held in Immamuddin's case that such order is judicial in character. Hon'ble Sharma, J. in Immamuddin's case observed as under :- Magistrate accepted the Final Report submitted by police and released the accused-Such order is judicial order-Subsequently he took cognizance of offence against accused on the basis of same allegations. Held, Magistrate had no jurisdiction to recall the order accepting F. R.-Order taking cognizance against the accused amounted abuse of process of Court and can be set aside u/s. 482 Cr. P. C. In this case Hon'ble Sharma, J. followed the decisions given in Dadam Chand's case (supra ). In Dadam Chand's case it was observed as under:- "magistrate accepted 'final report' of police and ordered discharge in favour of accused Held, such order of Mag. is judicial order and not administrative order- Said order cannot be recalled or reviewed by Mag.-Cognisaid order cannot be recalled or reviewed by Mag-cognizance taken Subsequently by Magistrate on application A. P. P. against accused, held without jurisdiction and as such quashed by High Court u/s. 482 Cr. P. C.
(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. " Reference was made to an earlier decision of this Court in Mangilal's case (supra) decided by Hon'ble M. C. Jain, J. In that case, it was observed as under:- In my opinion, it cannot be said that the order of acceptance of final report is an administrative order. When a final report is submitted, the Magistrate may either accept the same or may take cognizance on that report. Either of these courses are open to him but while scrutinising the final report and the investigation papers, the Magistrate has to act judicially and thereafter adopt any of the above three courses. At the time of consideration of the final report it is open to the Magistrate to direct further investigation but in case, he accepts the final report, then a question may arise that whether he can review his own order and direct further investigation thereafter. In case it is found and I have already so found that the order accepting the final report is a judicial order, then in my opinion, such an order cannot be recalled by the Magistrate and he cannot direct the police to make further investigation into the matter. " In both these cases heavy reliance was placed on the observations made on Abhinandan Jha's case (supra ). Likewise, reference was also made to a Division Bench judgment of the Allahabad High Court in Nirmal Singh vs. The State of Uttar Pradesh (8 ). Relying on the judgment of the Hon'ble Supreme Court and the Division Bench decision a define view has been taken by these judgments that the order passed by the learned Magistrate on the final report is a judicial order and it is not an administrative order. ;