A Magistrate accepting a police report does not take cognizance of an offence and discharges an accused.

L. N. CHHANGANI, J.

( 1 ) THE Additional District Magistrate, Jodhpur has made this reference with a recommendation that the offence under Section 211 I. P. C. for which Parasmal is being prosecuted having been committed in relation to proceedings before a Court, the prosecution of Parasmal on the private complaint of Sesmal is not competent and desires this Court to issue necessary orders, which obviously implies the quashing of the proceedings for prosecution.

( 2 ) THE facts briefly stated are that Parasmal lodged information with the police accusing the present complainant Sesmal of art offence of theft i. e. under Section 379 I. P. C. in respect of a truck. The complainant was arrested and the truck was recovered from him. The accused applied to a Magistrate for enlarging him on bail and handing over the truck to him. The accused was released on bail and the truck was handed over to one Badri-narain with the direction to maintain it in a proper condition. After investigation the Police fourth Parasmals information false and submitted a final report which was accepted by the Magistrate and the truck was returned to the present complainant Sesmal. After the disposal of Parasmals information in this manner, the complainant Sesmal filed a complaint against Parasmal and Pukhraj under sections 211/500 IPC in the Court of the Second Class Magistrate, Bilara. The Magistrate after summoning and perusing the old file registered a case on 25-1-58 under Section 500 I. P. C. against both Pukhraj and Parasmal and under Section 211 I. P. C. against Parasmal. Parasmal and Pukhraj filed a petition in revision before the Additional District Magistrate against the order of the First Class Magistrate dated 25-1-53 registering the case against them and contended that the Magistrate could not take cognizance in the absence of a complaint by the Court as the offence was committed in relation to proceedings in the Court. The Additional District Magistrate purports to hold that the acceptance of the final report by the Magistrate and proceedings taken by the Magistrate in connection with the delivery of property were all judicial proceedings and consequently offence of Pukhraj must be deemed to have been committed in relation to the proceedings before the court and, therefore, his prosecution was barred except on the complaint by the Court. It was also contended before the Additional District Magistrate that the Magistrate who accepted the police report having issued a notice under Section 476 Cr. P. C. to the complainant Parasmal to show cause why he should not be prosecuted and having subsequently vacated it, the present proceedings in prosecution are barred. The Additional District Magistrate however did not accept this contention In this view of the matter, the Additional District Magistrate has made the present reference.

( 3 ) I have heard Mr. Madhusudan Narain for the accused petitioner Pukhraj and Mr. Raj Narain for the State.

( 4 ) THE main question of law arising in the case on which a serious controversy was joined may be stated as follows: "when a report is made to the police charging any other person with the commission of an offence and the police after investigation finds that the report is false and gets the case cancelled under the provisions of Section 173 Cr. P. C. , is the order of the Magistrate accepting Police report sufficient to bring the offence in respect of false charge or false information to the police under sections 211 and 182 IPC within the categories of offences committed in relation to proceedings in a Court?" On this question there is a good deal of judicial conflict. One view is that the Magistrate passing an order on a final report of the police under Section 173 Cr, P. C. referring the cases should be deemed to be a court passing a judicial order disposing of the information given to the police and that in such a case the complaint of the Magistrate is necessary for the prosecution of the informa