R.L. Narasimham, C.J.
1. This is a petition to revise an order dated 8-6-1956, passed by the Subdivisional Magistrate of Bhadrak, calling for charge-sheet under Section 380 I.P.C. against some persons.
2. The relevant facts are as follows. On 13-1-1956 the opposite party Krushna Chandra Ghadei made a station diary entry at Chanda-bali P.S. to the effect that some persons surrounded his house and looted away some articles on the previous night. On the next day the Police treated the station diary entry as a regular F. I. R. under Section 395 I. P. C. and submitted final report as false on 25-2-1956. That final report was put up before the Sub-divisional Magistrate on 9-3-1956 and he passed the following order:
'F. Rule (Final report) received. The case is false. Await P. Rule under Section 211 I. P. C. against the complainant as proposed R/N not received. Remind the I. O. to send the R/N of the case. Put up on 24-3-56'.
The relevant papers were again put up before him on 30-3-1956 when he passed the following order:
'Perused the report of the C. I. There is no sufficient evidence against the complaint to prosecute under Section 211 I. P. C. F. R. false received. Enter Section 395 I. P. C.
3. In the meantime, however, as early as 3-3-1956 the informant Krushna Chandra Ghadei had approached the Magistrate with a protest petition anticipating that the police investigation may go against him and requesting the Magistrate to order an enquiry. The Magistrate rightly treated this protect petition as a complaint, examined Krushna Chandra Ghadei on solemn affirmation, and directed that the complaint should be put up for orders along with all the police papers. After several adjournments and after hearing the complainant, the learned Magistrate passed the following order on 8-6-1956:
'Complainant is present, F. F. received. Read the documents. Heard the lawyer. Call for charge sheet under Section 380 I. P. C. to 26-6-56'.
4. Mr. Kanungo appearing on behalf of the petitioners, challenged the legality as well as the propriety of the aforesaid order calling for charge sheet. First of all he urged that once the Magistrate had accepted the final report of the Police and declared the case to be false as early as 9-3-1956, he had no jurisdiction, on the basis of the protest petition filed by the complaint, to revise his previous opinion and direct the Police to submit charge sheet, in the absence of any further materials. Secondly, he contended that in any case a vague order calling for charge-sheet against nineteen persons named in the original report was improper and the Magistrate should have scrutinised the police papers more carefully and given clear directions as to which of the accused persons should be put on trial.
5. The first contention of Mr. Kanungo is practically concluded by a Single Judge decision of this Court, reported in Mahabir Prasad Agarwalla v. The State, ILR (1957) Cut 551 : (AIR 1958 Orissa 11) (A). There it was held that even though the final report of the Police may be accepted by the Magistrate in the first instance, there is nothing illegal if subsequently he revises his opinion and calls for charge-sheet after receiving the protest petition of the complainant and re-examining all the papers in the light of that petition and the submission made by the lawyer for the complainant. Doubtless, in that case there was a judicial enquiry under Section 202 Cr. P. C. which preceded the order of the Magistrate calling for charge-sheet. But it was pointed out that irrespective of whether a judicial enquiry was held or not, an order of the Magistrate accepting the final report of the Police may always be revised in the light of further materials that may come to light subsequently; or on further scrutiny of the relevant papers by the Magistrate after hearing the submissions made by the lawyer for the complainant. Doubtless, two courses are open to him In those circumstances. He may either proceed with the case as a complaint case and issue summons against the accused persons under Section 204 Cr. P. C., or else, he may call for charge-sheet and take no further action on the complaint petition. It was held by the Patna High Court in the Full Bench decision reported in Bharat Kishorelal v. Judhistir Modak, 10 Pat LT 779: (AIR 1929 Pat 473) (B) that Clauses (a) and (b) of Sub-section (1) of Section 190 Cr. P. C. under which the Magistrate exercises his powers to take cognizance are not mutually exclusive.
6. Mr. Kanungo however relied on the following decisions of some other High Courts, namely Akshay Kumar v. Jogendra Chandra, AIR 1956 Cal 76 (C); Venkatasubba Rao v. Anjanayulu, AIR 1932 Mad 673 (D); Abdul Rahim v. Abdul Muktadin, AIR 1953 Assam 112 (E) and The State of Kutch v. Budhgar, AIR 1954 Kutch 26 (F) and urged that once a protest petition has been filed the Magistrate had no jurisdiction to call for charge sheet at all. I am aware of this contrary view taken by some of the High Courts with regard to the power of the Magistrate to call for charge sheet after the final report has once been accepted by him. But the Patna High Court has all along held that the Magistrate can revise his previous order and call for charge-sheet in the special circumstances mentioned above and I see no reason to disturb this consistent view taken by that Court, See also Rama Shankar v. State of U. P., AIR 1956 All 525 (G).
7. Doubtless the choice as to whether a case should be proceeded with as a complaint case or as a Police case, should initially rest with the complainant because it was he who sought the help of the Magistrate when filing his protest petition, and he may have a genuine grievance if the complaint case is converted into a Police case thereby depriving him oi the right conferred by the recent amendment to Section 207 Cr. P. C. if the case eventually ends in acquittal. But so long as the complainant has made no grievance about this, I do not think the accused persons (petitioners) can urge that any illegality has been committed by the Magistrate.
8. On the question as to whether there was any justification for the Magistrate to revise his opinion on 8-6-1956 and call for charge-sheet there can be no two opinions. The Magistrate had before him not only the police papers, but also the statement of the complainant on solemn affirmation. He also heard the submissions made by the lawyer for the complainant. It is true that he has not given any reasons as to why he changed his previous view and called for charge-sheet. But even if he had summoned the accused persons under Section 380 I. P. C. he was not bound to give any reasons, because Section 204 Cr. P. C., under which processes are issued in such circumstances, does not require him to give reasons. It may be that he scrutinised the case diary with greater care, bearing in mind the submissions of the complainant's lawyer. I see, therefore, no illegality in the order of the Magistrate. But his order is somewhat defective inasmuch as it does not clearly specify the persons against whom he directed charge-sheet to be filed. In the original station diary entry (which subsequently became the F. I. R.) nineteen persons were named and the final report also mentioned all of them as accused persons. In the protest petition also it was alleged that all those persons participated in the commission of the crime. The Magistrate, however, should have scrutinised the case diary more carefully and made up his mind as to whether it was advisable to put all the nineteen persons on trial or whether the ends of justice would be served if those persons who took a prominent part in the crime, alone are placed on trial. He may leave it to the choice of the complainant as to whether the case should be treated as a Police case or a complaint case. If the complainant desires it to be a Police case, the Magistrate may call for charge-sheet only in respect of those persons who according to him should be placed on trial. If, however, the complainant desires it to be treated as a complaint case, the Magistrate may issue processes under Section 204, Cr. P. C. against those persons.
9. The order of the Sub-divisional Magistrate dated 8-6-1956 is accordingly set aside and he is directed to proceed with the case according to law bearing in mind the observations contained in this Judgment.
G.C. Das, J.
10. I agree.