M. C. JAIN. J. - (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. I have heard the learned Public Prosecutor for the State and the learned counsel for the accused-respondents in the above appeals and revisions. The question that arises for consideration in these appeals and revisions, is, as to whether complaint by the S. H. O. for the offence under Sec. 182, I P. C. , is maintainable despite the fact that the final report was accepted by the Court. It may be stated that the question is no more res Integra in view of the earlier decision of this Court. In Bachan Singh vs. State (1) the question which arose for determination was whether in the case in which a final report under Sec. 173, Cr. P. C. is submitted by the police on the ground that the complaint has been found to be false on investigation it may be said that the complaint for the offence under Sec. 211, I. P. C. , is in relation to a proceeding in the court. His Lordship Dave, J. , as he then was, held that the order filing the report or accepting the report is not a judicial order, but an administrative order. It was further observed that there being no proceeding before a Magistrate by that time, it cannot be held with any justification that the offence under Sec. 211, I. P. C has been committed in or in relation to any proceeding before a court and, therefore, the complaint must be made by it. The other case is Pukhraj vs. Sheshmal (2) which has been referred to and relied upon in Bachan Singh's case (supra ). In Pukhraj's case it has been held as under: - "when a report is made to the Police charging any person with the commission of the offence and the police after investigation finds that the report is false and gets the report cancelled under the provisions of S. 173 Cr. P. C. , the Magistrate receiving the information and accepting it does not act as a Court and the act of the Magistrate in accepting the police report does not give rise to judicial proceedings. The offence of false charge preferred against the informant in respect of such report cannot be in relation to proceedings of a Court and a complaint of the Court is not necessary for his prosecution under Sec. 211, I. P. C. A move before a Magistrate for the proper custody of property during the course of investigation by the police also is not a judicial proceeding but an incidental one and on account of such proceeding an offence of false charge under S. 211, Penal Code cannot be deemed to have been committed in relation to the proceedings before a Court, when the police, finding the information of the informant to be false sends final report under S. 173 Criminal P. C. and the Magistrate accepts it. " His Lordship Chhangani, J. , considered the difference of opinion amongst the High Courts and preferred to follow the view taken by the Madras High Court and the Lahore High Court in Full Bench decision and other cases mentioned in the judgment. 1 need not examine the matter in any further details, as I am clearly of the opinion that when a final report is accepted by the Court, it was not necessary that complaint should have been filed by the Court. The Station House Officer was competent to file the complaint for the offence under Sec. 182, I. P. C.
(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. Accordingly, the impugned orders of the Munsif and Judicial Magistrate, First Class, Sirohi, are set aside and the cases are sent back to the concerned Magistrate for disposal in accordance with law. .;