Baldev Kishan vs The State of Rajasthan and Others

A.K. Mathur, J.—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 v. State of Rajasthan 1987 RLR 106 and another view taken by Hon''ble G.K. Sharma, J., as he then was, in Jawahara Ram v. The State and Ors. 1989 CriLJ 29. In view of the inconsistency in the two judgments referred to above, the learned Single Judge referred the matter to Hon''ble Chief Justice that let this controversy may be resolved by a large 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 administraative order.

u/s 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 u/s 190(1)(a) Cr. PC. 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 discertion 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 cases of Mangi Lal v. The State of Rajasthan and Anr. 1979 WLN (UC) 188 decided by Hon''ble M.C. Jain, J. and in Dadam Chand v. State of Rajasthan 1987(1) RLR 106. But subsequently when the attention of Hon''ble G.K. Sharma, J. was invited to the judgments of this Court in 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 v. State of Raj. and Ors. 1989(1) RLR 640 . In Jawahara Ram''s case (supra) Hon''ble G.K. Sharma, J. relied upon the judgment given by Hon''ble Farooq Hasan, J. in State of Madhya Pradesh Vs. Ramcharan and Others, and Hon''ble Farooq Hasan, J. relied upon the decision given by this court in Pukhraj Vs. Sheshmal,

The case of Pukhraj (supra) was considered by one of us (Bhatnagar, J.) in Dadam 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 upon the various judgments of the Supreme Court also took the view that such an order is judicial in charater 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) mi 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 Abhinandan Jha and Others Vs. Dinesh Mishra, he readily agreed with the reasoning given in the aforesaid cases and held in Immamuddin''s case that such order is judicial in character. Hon''ble Sharma, J. in lmmamuddin''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 has 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 decision 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 Magistrate is judicial order and not administrative order-Said order cannot be recalled or reviewed by Magistrate-Cognizance taken subsequently by Magistrate on appln. of APP against accused, held, without jurisdiction and as such quashed by High Court u/s 482 Cr. P.C.

In this case the attention of the Court was invited to Pukhraj Vs. Sheshmal, and this judgment was explained and it was observed as under:

In this case of (3) Pukhraj v. Seeshmal 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 Section 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 IPC.

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 coginizance on that report. Either of these courses are open to him but while scrutnising 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 accepting the final report then is 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 directed the police to make further investigation into the matter.

In both these case 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 Dayaram Garia Vs. The State, Relying on the judgment of the Hon''ble Supreme Court and the Division Bench decision a definite 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.

Hon''ble Sharma, J. as he then was also accepted this line of reasoning in a subsequent judgment Immamuddin''s case (supra). Thus, in view of these 3 judgments of this Court, it is settled proposition that acceptance of final report and non-acceptance of final report by a Magistrate is a judicial order and not an administrative order. Thus, the view taken Jawahara Ram''s case; Gopal Ram Bhabhda''s case and Pukhraj''s case (supra) is no more good law and they are overuled.

However, our attention was also invited to the decision of Bhagwant Singh Vs. Commissioner of Police and Another, whereby a new dimension has also been opened that in case when a final report is accepted then a notice should also be given to the complainant so that he can get an opportunity of submitting before the court his grievance. This also supports the view that the acceptance of the final report submitted by the police is always subject to the discretion of the court and a notice to the complainant will finally dispose of the matter whether the congizance is to be taken or not to be taken. This further strengthens the view that the order passed by the learned Magistrate after hearing the complainant becomes final and once an order is passed by the court after hearing both the parties i.e. complainant and the prosecution then it finally decides the matter and such an order which decided the matter after hearing the complainant and the prosecution cannot by any stretch of imagination can be treated as an administrative order. It has also a social prupose behind it that once the court decided the matter and comes to the conclusion that no offence is made out on the basis of the police report and after hearing the complainant then a finality is attached to the order. If it is to be treated as an administrative order then it will always be subject to review and revision and no finality will be attached and it will and harassment to the parties. Therefore, we are of the opinion that in view of the various decisions of this Court as mentioned above, the order passed by the learned Magistrate on a final report submitted by the police is a judicial order.

Since this was the only question referred to this bench and it has been answered as aforesaid, therefore, we send this case back to the learned Single Judge to dispose of this case in accordance with law.