S. Malik, J.
1. This Criminal Revision, as usual, came up for hearing before a learned Judge of this Court.
2. At the time of hearing it appears to have been urged by the learned Counsel for the parties before the learned Single Judge that in this case it is necessary to decide whether a Magistrate while accepting a final report under Section 169 of the Cr.P.C. 1898 (hereinafter referred to as the Code) functions as a Court. Contrary views have been expressed in two different cases by two learned Judges of this Court on this question. In Sheo Bilas v. State : AIR1959All14 it was observed: (at p. 3 of Cri. L. J.)
A final report under Section 169 is certainly submitted to a Magistrate for approval but the Magistrate at that stage is not functioning as a Court but is functioning only as a Magistrate.
Another learned Judge of this Court observed in Nand Singh v. Sardar Singh 1964 All Cri C 22 that a Magistrate while accepting a final report functions as a Court.
In view of these contrary decisions, the following question has been framed and referred to us by the learned Single Judge for an answer:
Whether a Magistrate while accepting a final report functions as a Court and can make a complaint in respect of an offence referred to in Section 195 Sub-section (1) clause (b), which appears to have been committed in relation to the matter to which the final report relates.
3. We would like to split up the question in two parts: first we would like to deal with the question :
Whether a Magistrate while accepting a final report functions as a Court.' and thereafter we would deal with the question;
Whether a Magistrate while accepting a final report can make a complaint in respect of an offence referred to in Section 196, Sub-section (1), Clause (b), which appears to have been committed in relation to the matter to which the final re-port relates.
4. After considering the relevant sections appearing in Chaps. XIV and XV of the Code we are of the view that a Magistrate while accepting final report functions as a court.
5. Chapter XIV contains elaborate provisions regarding how the police has to investigate a reported offence. We do not consider it necessary to enter into a detailed discussion of those provisions as they are not relevant for our purposes. We may observe that after the Investigating officer has concluded investigations and has formed an opinion as to whether a case had been made out for placing the accused before the Magistrate concerned for trial, ha either submits a charge-sheet in accordance with Section 170 or a final report in accordance with Section 169 of the Code.
6. We may point out that even when the police submits a final report, the Investigating Officer is bound while releasing the accused to take a bond from him to appear before the Magistrate concerned if and when required.
7. After receiving the police report irrespective of the fact whether it is a final report or a chargesheet the Magistrate has to use his judicial discretion and apply his mind as to how the report is to be dealt with. If it is a charge-sheet submitted by the police and after exercising his judicial discretion, the Magistrate comes to the conclusion that no offence is made out, the Magistrate is not bound to accept the opinion of the police.
8. Similarly, when a final report is submitted by the Investigating Officer, though the Magistrate cannot direct that a charge-sheet should be submitted as it is for the police to form a final opinion on the basis of investigations made by it, the Magistrate can either direct that further investigations be made under Section 156 (3) of the Code or take cognizance of the offence under Section 190 (1)(b) of the Code or accept the final report. In order to decide which of the three courses the Magistrate should take, he has to act judicially and use his judicial discretion and, therefore, act as a court.
9. Though the question was not directly before the Supreme Court, while dealing with the question as to whether a Magistrate can order the police to submit a charge-sheet after a final report has been submitted under Section 169 of the Code the Supreme Court has discussed in detail all these matters end has made observations which support the view taken by us (vide Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 ).
10. As a Magistrate, In our view, functions as a court while accepting a final report, then certainly, in a proper case to which provisions of Section 105, Sub-section (1), Clause (b) of the Code apply, the Magistrate can make a complaint in accordance with the provisions of Section 476 of the Code. In other words,-if the Magistrate is of the opinion that the offence complained of was committed in relation to any proceeding pending or concluded in the court of the Magistrate, the Magistrate can make a complaint but not otherwise. In the instant case it will have to be decided by the learned single Judge as to whether the alleged offence said to have been committed under Section 211 of the I. P. C. was committed by Nirmal Singh in relation to any proceeding pending or concluded in the court of the learned Magistrate. The question as to whether the alleged offence was committed 'in relation to the matter to which the final report relates', to quote the words used by the learned, single Judge in the question referred to us if we may say so with respect, does not appear to be relevant. We may repeat that the Magistrate can make a complaint only if he is satisfied that the offence in question was committed in relation to any proceeding either pending or concluded in the court of the learned Magistrate. The question has been dealt with a considerable detail by the Supreme Court in M. L. Sethi v. R. P. Kapur : 1967CriLJ528 .
11. It was argued before us that actually the learned Magistrate appears to have taken cognizance under Section 190(1)(b) of the Code on the report submitted by the police along with the final report and the impugned order passed by the learned Magistrate is not at all an order under Section 476 of the Code. It was urged that there is no allegation that the offence under Section 211 of the I. P. C, was committed in relation to any proceeding in any court either concluded or pending and, therefore, neither Section 195 nor Section 476 of the Code would apply. It was argued that as the learned Sessions Judge, while disposing of Criminal Revn. No. 65 of 1973 wrongly mentioned that the learned Magistrate has initiated proceedings under Section 476-A of the Code, this mistake has crept in. As this aspect of the case has to be decided by the learned single Judge and has not been referred to us, we refrain from giving a finding on this question.
12. In view of the reasons discussed, our answer to the question referred to us would be as follows:
A Magistrate while accepting a final report functions as a Court and in a proper case can make a complaint in respect of an offence referred to in Section 195(1)(b) of the Criminal P. C.
13. Let the case be now listed as early as possible before the learned single Judge for final disposal of the revision application.