A Magistrate is not debarred from taking cognizance on a complaint merely because he had earlier declined to take cognizance on a police report.

MOHD. YAMIN, J.

( 1 ) THIS revision has been preferred by Jai Narain against the judgment of learned Sessions Judge, Balotra passed in Cr. Revision No. 29/89, decided on 27-2-91 with respect to setting aside the order of learned Munsif and Judicial Magistrate, Siwana in Cr. Case No. 9/88 decided on 11-1-88.

( 2 ) THE petitioner lodged a report at police station, Siwana on 24-2-86 to the effect that he owned and possessed a self-purchased plot at village Siwana which was located near Panchayat Bhawan and Primary School. The petitioner had enclosed it with stone slabs on two sides and an iron door was fixed and the name of the petitioner was embossed on it. The petitioner had purchased this plot in the year 1980 from one Shri Roop Singh by a registered sale deed and since then he was in its possession. The accused persons had no legal claim over it. When the petitioner had purchased this plot from Roop Singh one Parasmal Mahajan had lodged a case under Ss. 379 and 447, IPC against petitioner, Roop Singh, Jeetmal and Govind Ram. It was registered as Cr. Case No. 587/80, State v. Roop Singh and others and the petitioner as well as Roop Singh, Jeetmal and Govind Ram were acquitted on 27-1-86. On 23-2-86 the respondents after conspiring came with labourers and tried to take forcibly possession of the plot. They came with a tractor and trolly of Prithvi Singh. Mukna Ram was having a kulhari. They removed the stone slabs and stones lying in the plot and took them away. As soon as the petitioner came to know he went at the site where he was threatened to be killed. Then he lodged the report with the Dy. S. P. Balotra and police station, Siwana. The police then did not give him opportunity to produce witnesses and collusively got recorded the statements of unconcerned witness and thereafter submitted final report. He had already filed a civil suit for declaration and possession against Mukna Ram and Prithvi Singh before the learned District Judge, Balotra. The petitioner filed a protest petition before the learned Munsif and Judicial Magistrate, Siwana on 29-10-86 and the learned Magistrate after recording statements of witnesses of the petitioner took cognizance under Sections 447 and 427, IPC. Then the accused persons filed a revision against the order of learned Magistrate. The learned Sessions Judge after hearing both the parties set aside the order of learned Magistrate on 27-2-91. Aggrieved against this order the petitioner filed this petition under section 397/401, Cr. P. C. with the aid of S. 482, Cr. P. C.

( 3 ) I have heard the learned Counsel for the parties at length.

( 4 ) LEARNED counsel for the petitioner carried me though the evidence recorded under Chapter XV of Cr. P. C. and it is found that the main witness who was the eye-witness has not been examined. Apart from it the record shows that on 28-1-86 Jai Narain and three others were acquitted by Munsif Magistrate, Siwana on 23-2-86. The respondents in the present case are alleged to have entered in the plot and took away stones and slabs. On 24/26-2-86 Jai Narain submitted FIR and the police filed final report on 26-9-86. On 29-9-86 notice was given to Jai Narain which is on record. On 29-9-86 he filed a civil suit. On 27-10-86 arguments were heard on the final report. On 29-10-1986 itself protest petition was filed and the final report was accepted and the case was fixed for statements of witnesses under S. 202, Cr. P. C. for 10-11-86 and then the Magistrate took cognizance on 11-1-88. The learned Counsel for the respondents citing 1987 WLN (UC) 442, Babulal v. Surajmal Singh, submitted that when the Magistrate while accepting the final report and also taking cognizance of same offence against same accused in same transaction, the order was a judicial order and was final for all purposes unless set aside. So the order by which final report was accepted was a judicial order and was final unless it was set aside. Then the counsel for the respondents relied on