V.S.DAVE, J. - (1.) IN this miscellaneous petition show -cause notice was issued on 31 -5 -1988 as to why the petition should not be admitted. The petition has been filed against the order, dated 5 -5 -1988 passed by learned Munsif and Judicial Magistrate' Ist Class, with a {prayer for quashing the entire proceedings pending in the said court in criminal case State v. Rampal.
(2.) BRIEF facts leading to this case are that one Jagannath who has been impleaded as complainant -respondent No. 2 in this case, filed a complaint in the court of Chief Judicial Magistrate, Tonic on 4 -1 -1982, wherein it was alleged by him that the complainant is an agriculturist. He on 5 -4 -78 handed over 11 bags of Jeera weighing 5 quintal and 500 grams and 5 bags of Dhania to accused Rampal. He alleged that he handed over the aforesaid goods with a direction that the goods will be sold only when he (complainant) asks the accused to do so and till then they will be retained in the godown. Along with the complaint, one Bhuwana is also alleged to have placed 12 bags of Jeera weighing 6 quintals on 5 -4 -1978 and he too gave instructions that the goods would not be sold unless so instructed. It was alleged that accused also issued Amanat Patti receipt of which is an information to the authorities under the Agriculture Produce Market Act about the aforesaid keeping of the goods vide receipt Nos. 152/52 and 152/51. On 22 -12 -1981 the complainant Jagannath and Bhuwana went to the accused for taking back their goods but he refused to return the same. The complainant thereupon filed complaint with Krishi Upaj Mandi Samiti, Tonk. The latter did not take any action against the accused persons, It was alleged that the accused dishonestly sold the goods without the consents of the complainant and devoured the money and this has been done dishonestly in order to deprive the complainant of his goods and to cause loss to him. It is alleged that the accused has thus, converted the goods to their own use and has committed the offence under ss. 406 and 403 IPC. Case was sent for investigation under s. 156(3) Cr PC. to the Police Station, Kotwali, Tonk where a criminal case was registered against the accused as crime No. 7/82 dated 14 -1 -1982. The case was investigated in details by the Investigating Officer and he came to the conclusion that the goods had been entrusted to the accused by Jagannath and Bhuwana for the purpose of selling them on commission basis. The goods were sold in accordance with the established practice and the intimation was given of the same to Krishi Upaj Mandi Samiti, particularly because the Firm was located within the Yard defined under Agriculture Produce Market Act It was further known during investigation that since the prices of Jeera and Dhania went up the dispute arose between the parties and the case relates to pure and simple business transaction which has now been given criminal colour. A final report was therefore, submitted by the Police in the court of learned Chief Judicial Magistrate, Tonk who after perusing the report as well as investigation papers and the entire case diary agreed with the opinion formed by the Police and accepted the final report vide his order, dated 1 -6 -1982. It is pertinent to mention here that though the final report has been accepted on 1 6 -1982 yet for the reasons best known, on a complaint lodged to the Superintendent of Police, Tonk the latter directed re -investigation without seeking the permission of the court The Police did another investigation and subsequently filed a charge -sheet against the accused -petitioner Rampal for offence under s. 406 IPC This charge sheet bad not been filed before the learned Chief Judicial Magistrate who had earlier accepted the final report, but was filed in the court of learned Munsif and Judicial Magistrate, Tonk. The learned Magistrate has framed charges against the petitioner and it is this order which has been challenged in this petition. The petitioner has prayed that the impugned order, dated 5 -5 -1988 be set aside and the entire criminal proceedings should be quashed. An important point has been argued by the learned Counsel for the petitioner that once a case has been investigated on a particular complaint or on registration of case as an FIR, and the Investigating Officer after' thorough investigation submits a report, the Magistrate has jurisdiction to deal with it in several ways, i e., he can accept the final report, he can reject the same and he can direct re -investigation of the case also While passing the order of any of three types he is under an obligation to peruse the entire investigation papers and apply his judicial mind. An order passed accepting or refusing to accept the final report is thus a judicial order and there is propriety attached to such an order. It is submitted that after a final report has been filed by police and accepted by the Magistrate, it is not open to the Investigating Officer to re -investigate the case and submit a charge -sheet. It is submitted that if this would be permitted, then it will result in chaotic conditions and no sanctity would be attached to a judicial order. It is submitted by v the learned Counsel that there is yet another impropriety and that is that the order of the learned Chief Judicial Magistrate accepting the Final Report has been set at naught by a subordinate authority, a Magistrate of the first class. It is submitted that if the complainant was aggrieved by the order of the Chief Judicial Magistrate it was open to him to have requested the leaned CJM for directing re -investigation or he should have approached next higher court. It is then submitted on merits that even if the entire complaint is accepted no criminal offence worth the name is made out in as much as dispute is alleged to have arisen during the course of business transaction and matter is of civil nature. It is also submitted that according to the facts given in the complaint itself perishable good have been given to the petitioner by the complainant on 5 -4 -1978 and first approach was made by him for return of the goods on 22 -12 -1981, i.e., after 3 -1/2 years, it cannot be conceived of that for 3 -1/2 years the complainant had kept the Jeera and Dhania in trust with the petitioner. It was not a short -time transaction as is being convessed it the complaint.
(3.) IN support of his contention whether accepting the final report is a judicial order or not? The petitioner relied on Mangi Lal v. The State of Rajasthan [1979 WLN(UC)188]; Daman Chand v. State of Rajasthan [RLR 1987(1) 106], K. Ramasubbu v. The State and mother 1988 Cr. L.J. 214 and Kamalapati Trivedi v. The State of West Bengal : 1979CriLJ679 On another point as to whether a subsequent charge sheet can be filed or further investigation without permission of the court is permissible or not, the learned Counsel relied on Ramlal Narang v. State Delhi Admn : 1979CriLJ1346 . I earned Counsel also relied on Udat Ram etc. v. State of Raj. [1983, RLR 875] to substantiate that it would be desirable that Police should inform the court and seek formal permission to make fresh investigation when fresh facts come to light. Learned Counsel has also placed reliance on Babu Lal and Anr. v. State of UP: [1982 Cr. LJ 1020].;