Gopal Ram Bhabhda vs State of Rajasthan

Farooq Hasan, J.—This revision petition is directed against the order of (he Judicial Magistrate (2), Jaipur City, Jaipur, dated 22-6-84 whereby he accepted the final report submitted u/s 173 Cr.PC by the police in the case registered on FIR No. 98/84 at the Police Station, Kotwali, Jaipur on 6-3-84.

Briefly stated the facts of the case are that the petitioner is the father of late Smt. Anita, who died of the injuries sustained by burns. The petitioner suspected it a case of murder and as such he lodged a report at P.S., Kotwali, Jaipur on 6-3-84 on which the above noted Criminal case No. 98/84 was registered u/s 302/34, IPC. The police after investigation submitted a report u/s 173, Cr.PC which was accepted by the Judicial Magistrate by his order under revision.

At the very outset a query was made to the learned Counsel for (he petitioner;(l) whether the order under revision is revisable or not; and (2) whether the order of the learned Magistrate dated 22-6-84 is a judicial order or not. The learned Counsel for the petitioner submitted that the order under revision is a judicial order.

In the case of Pukhraj Vs. Sheshmal, the learned Judge of this Court observed as under:

When a report is made to the police charging any person to 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 Section 173 Cr.PC the Magistrate receiving the information and accepting it does not act as a Court and the act of a Magistrate in accepting the police report does not give rise to judicial proceedings. The offence of false charge preferred against the information 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 u/s 211 IPC.

In the light of aforesaid observations, the acceptance of the final report by the Judicial Magistrate is not a judicial act and it is merely an administrative act of the Magistrate. Acceptance of the police report or taking cognizance of an offence u/s 190, Cr.PC are two inconsistent alternative courses which may be adopted by the Magistrate. The Magistrate accepting the police report and omitting to proceed u/s 190 Cr.PC does not mean that the Magistrate has taken cognizance of the case. In case the report u/s 73, Cr.PC is accepted by the Magistrate, I am of the opinion that the informant or the complainant is at liberty to file a fresh complaint before the Magistrate and the Magistrate can proceed on the basis of that complaint and the order of accepting the final report cannot be termed as a bar for the Magistrate to proceed, on the basis of that complaint. Even not police has a right to reopen the investigation even after filing the report u/s 173 Cr.PC which has been accepted by the Magistrate, because there is no bar for filing a supplementary report as against the same accused persons. u/s 173(2)(ii), Cr.PC it has been made obligatory on the part of the officer making a report u/s 173 Cr.PC that officer shall also communicate in such manner as may be prescribed by the State Government the action taken by him to the person if any by whom the information relating to the commission of offence was first given. This clause has been provided in order to facilitate the informant to take any further action against the report and that action can be of filing a fresh complaint before the Magistrate having jurisdiction of the case. In the case Pukhraj Vs. Sheshmal, the learned Judge further observed that the proceedings u/s 173 Cr.PC before a Magistrate are not judicial proceedings. Further these proceedings are incidental and it would not be proper to hold that on account of these proceedings an offence of false charge u/s 211 IPC or false information should be deemed to have been committed in relation to the proceedings before a court when the police sends final report and the Magistrate accepts it. In the case referred to above, it has also been observed that the consideration of the report u/s 173 Cr.PC before a Magistrate is not a judicial function and so that function cannot be held to be a function of the court. In these circumstances, in the instant case, while accepting the final report an inference of any proceedings, finding or order by a court cannot be drawn. u/s 397 Cr.PC and 401, Cr.PC the revisional court is only comptent to call for and examine the record of any proceedings before an inferior criminal court for the purpose of satisfying itself as to the correctness, legality and properiety of any finding, sentence or order recorded or passed by the inferior court. In these circumstances, the present revision petition is not maintainable and I do not think it proper to go into the merits of the case. I again observe that the petitioner is at liberty to file a complaint before the competent court in case he is not satisfied with the final report given by the police and accepted by the Magistrate.

With these observations, the revision petition is dismissed.