A. K. MATHUR, J. - (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. Mr. Singhvi, learned counsel for the petitioner, submitted that on 2nd September 1987, when the learned Magistrate has accepted the final report after hearing the complainant on his protest application, that is a judicial order and thereafter it was not proper for the Magistrate to again post the matter on protest petition for recording the statement under section 200 and 202 Cr. P. C. The learned counsel submitted that since the acceptance of the final report is a judicial order and when the Magistrate has passed a judicial order accepting final report, after hearing the complainant on protest petition, then he ceases to have jurisdiction and cannot proceed on the protest application and record the statement under section 200 and 202 Cr. P. C. The learned counsel submits that the order of acceptance of the final report is a judicial order and in support of this contention, the learned counsel has invited my attention to a direct authority of the Supreme Court reported in Kamalapati Vs. State of W. B. (1) the judgment of the Rajasthan High Court in Mangilal Vs. State of Rajasthan (2) and Dadam-chand Vs. the State of Rajasthan (3 ). As against this, Mr. Omprakash submitted that such order is an administrative order and learned counsel has invited my attention to Mukundlal Vs. Union of India (4), Tejumal Vs. the State of Rajasthan (5) and Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha (6 ). Now the question before me is whether the acceptance of the final report by the Magistrate, after hearing the complainant on his protest petition, is a judicial order or not? My answer to this question is in positive. Suffice it to say that once the Magistrate accepts a final report it involves application of mind and he passes the order as the Court under the Criminal Procedure Code. Therefore this is a judicial order and it cannot be termed as an administrative order. When the case is sent for investigation on complaint to the police and police after investigation in the matter sends its report to the Magistrate, it is open for the Magistrate to accept the final report or reject the final report, as the case may be. It has come to my notice that the* Magistrate takes a very easy approach and passes a very cryptic order even while taking cognizance on final report or accepting the final report. In either contingencies they pass the order as a Court under the Criminal Procedure Code and simply that they do not pass a detailed order for accepting or not accepting the final report, the order does not cease to be a judicial order, order will remain a judicial order because the Magistrate passes the order as a Court under the statutory provisions of the Criminal Procedure Code as well as after due application of mind. Thus, such orders are judicial orders. In this connection, my attention was specifically invited to a direct judgment of the Supreme Court reported in Kamalapati's case (supra ). This was a case of three Bench Judges and the minority judgment was written by Hon'ble Kailasam J. , but the majority judgment was written by Hon'ble A. D. Koshal J. After reviewing the various provisions of the Criminal Procedure Code and various case-laws on the subject the Hon'ble Supreme Court summarised the matter in the following words: - "sections 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state that the police has to do short of such submission when it finds at the conclusion of the investigation (1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate (Sec. 169), (2) that there is sufficient evidence or reasonable ground as aforesaid (section 170 ). In either case the final report of the police is to be submitted to the Magistrate under sub-sec. (1)of S. 173. Sub-Sec. (3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by section 169), the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. Now what are the courses open to the Magistrate in such a situation? He may, as held by this Court in Abhinandan Jha v. Dinesh Mishra (1967)3 SCR 6e8 (A. I. R. 1968 S. C. 117 ). (1) agree with the report of the police and file the proceedings; or (2) not agree with the police report, and (a) order further investigation, or (b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of. The appropriate course has to be decided upon after a consideration of the report and the application of the mind of the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2 (a ). The order passed by the Magistrate in each of the other two courses, that is, (1) and 2 (b) follows a conclusion of the investigation and is a judicial order determining the right of the parties (the State on the one hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court". Their Lordships of the Supreme Court had made only one exception i. e. that when a Magistrate for a police report that order only will be an administrative order and the order i. e. accepting or not accepting of the final report was found to be a judicial order. A similar view has also been taken by our own High Court in Mangilal's case (supra), Hon'ble M. C. Jain J, has held that such orders are judicial orders. In identical terms Hon'ble Bhatnagar J. has also taken a similar view in Dadamchand's case (supra ). As against this Hon'ble G. K. Sharma sitting at Jaipur Bench has taken the view that such order is not a judicial order but it is an administrative order. With great respect I do not agree with the view taken by Hon'ble Sharma J. , in view of Kamalapati's case (supra) which appears to have not been brought to his notice, so also the judgment of this Court reported in Mangilal's case (supra ). But in view of the judgment of their Lord-ship of the Supreme Court in Kamalapati's case (supra) the question now no more remains res integra in view of the aforesaid judgment that acceptance or non acceptance of the final report is a judicial order and not an administrative order. So far as Tejumal's case (supra) is concerned, Hon'ble Chopra J. , has not taken this view as canvassed by the learned counsel. On the contrary their Lordships have held that the Magistrate can accept or not to accept the final report after affording an opportunity of hearing to the complainant. Therefore, this judgment does not lay down that the acceptance or non acceptance of the final report by the Magistrate amounts to an administrative order. In Gopal Vijay Verma's case (supra) it has been observed that it is open for the Magistrate to take the cognizance on a complaint even if he had earlier refused to take the cognizance on a police report. In this case, the police report was accepted by the Magistrate, but the complainant was not heard. Therefore, it was held that it is open for the Magistrate to take the cognizance on the basis of the complainant and he can order for the inquiry. Therefore, this case does not afford any assistance so far as determination of the question before me is concerned. Now, in the light of the law, which has been enunciated above, I shall examine the factual aspect of the matter. In fact, on 2nd September, 1987, the learned Magistrate in one breath accepted the final report, after hearing the petitioner and at the same time directed an inquiry under section 200 and 202 Cr. P. C. It is not open for him to dissect this matter into two modes. In my opinion, this approach on the part of the learned Magistrate was not correct. On 2nd September, 1987, when the counsel for the complainant was present, he was heard and the protest petition was also there, then he should have disposed of both the matters simultaneously instead of deciding the matter in piece meal. A reading of the order dated 2nd September, 1987 shows that counsel for the complainant was present, he was heard on the protest petition and thereafter, the learned Magist ate passed a detailed speaking order, accepting the final report notwithstanding the protest petition. That shows that the counsel for the complainant had an occasion to address the learned Magistrate on the basis of the material before him and on that basis the learned Magistrate found that there is no substance in the protest petition and he accepted the final report. At the same time he posted the matter for recording the statement under section 200 and 202 Cr. P. C. that was not proper on his part. Either he should have recorded the statement of the witnesses under section 200 and 202 Cr. P. C. and after recording the statement he should have clubbed them together with the final report and passed an order disposing both of them together, but the learned Magistrate has adopted an entirely third mode that he heard the learned counsel for the complainant on his protest petition as well as on the final report and accepted the final report and then again he deferred the matter for recording the statement under sections 200 and 202 Cr. P. C. This mode adopted by the Magistrate is not warranted at all. Therefore, the learned Magistrate once having accepted the final report, after hearing the complainant, could not have proceeded to record the statement under section 200 and 202 Cr. P. C. I have also gone through the complaint which has been read out before me in detail. A bare reading of this complaint shows that no request whatever was made in the complaint that the complainant wants to lead evidence of the witnesses or he wants to examine some witnesses, which have been recorded by the police. Mr. Omprakash, learned counsel for the petitioner, tried to argue on the merits of the matter which is not before me at this stage, as the revision is already pending against the order dated 2nd September 1987 accepting the final report before the Sessions Judge. As such it will not be proper for me to take any observation on that part. But the question before me is whether it was open for the Magistrate to have passed the order in piece-meal. My answer is in negative.
(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. In the result, I allow this revision petition and quash the order passed by the learned Sessions Judge dated 28th February 1989. Any observation made in this judgment shall not affect the pendency of the revision before the Sessions Judge. .;