The court emphasized that the order accepting the final report and releasing the accused was a judicial order, and the Magistrate had no jurisdiction to recall it, deeming the subsequent order taking cognizance an abuse of the process of the court.

1. 1. This petition under section 482, Cr. P. C. is directed against the order dated 22nd Mar., 1988. passed by the AMJM No.2 (South), Kota, whereby, he took cognizance against the petitioner under section 379, IPC.

2. The learned counsel for the petitioner argued that he has come to this Court with this petition. on some legal point. According to him, the learned Magistrate had no jurisdiction to pass the order, and so, legally, that order is not to be maintained.

3. A complaint was lodged against the petitioner, alleging that on 5th Nov., 1934, Rs. 10 000/- were given on loan to the petitioner, who left his motorcycle bearing No. UPM-404, with the complainant, Sharif Ahmed. An agreement was also executed between them. The allegation is that thereafter on 6th Apr., 1985 the accused-petitioner committed theft of the aforesaid motorcycle, which was standing at the house of the complainant. He was informed of this fact by Farooq and Wahid. Later on the motorcycle was found at the house of the accused petitioner. On this report, the police registered a case under section 379. IPC, seized the stamp-paper, recorded statements of the witnesses and arrested the accused petitioner. After completing investigation, the police submitted final-report before ,the Magistrate. The Magistrate after perusing the case-diary and the final-report, accepted the report; and on 14th Aug., 1985, he passed the order Us 169, Cr. P. C., releasing the accused-petitioner. Thereafter, on 22nd Mar., 88, the learned Magistrate took cognizance against the petitioner under section 379, IPC, with regard to the game incident, for which, the final-report was submitted by the police. This order Of taking cognizance has been challenged here.

4. The learned counsel for the petitioner argued that once the learned Magistrate had accepted the final-report, submitted by the police, he had no power to revoke his earlier order and take cognizance against the petitioner on the basis of the same allegation. In support of his argument, Mr. Nand relied on the case of Dadam Chand v. State of Rajasthan (1987 (1) RLR 106) , in which a similar matter was involved, and this Court, while relying on the case of Abhinandan Jha v. Dinesh Mishra (AIR 1968 SC 117) , held that the order passed by the learned Magistrate accepting the report of the police that no was made out against the petitioner. was a judicial order, the natural consequence would be that the order taking cognizance against the petitioner amounting to recalling of the order was without jurisdiction. The act of the learned Magistrate was held to have amounted to be as abuse of the process of the courted the contention was accepted and the order taking cognizance was set aside.

5. In the present case, the circumstances are similar to that of Dadam Chand's case (supra). Here, a report was lodged under section 379, IPC. The police registered a case. investigated the matter and submitted its final-report on the ground that no case was made out and no incident as alleged by the complainant, had taken place; and this report was accepted by the learned Magistrate.

6. The argument of the learned Public Prosecutor was that this was an administrative order of the learned Magistrate, and therefore. the learned Magistrate did have the power to recall his administrative order. I do not agree with this contention. In the case of Dadamchand (supra), a similar argument was raised as to whether the order of the learned Magistrate accepting the final-report, was an administrative order or a judicial order, and this Court after consulting a number of case-laws and relying on the case of Abhinandan Jha (supra) held that the order accepting the final-report was a judicial order and not an administrative order; and once the order was passed by the learned Magistrate, he had no jurisdiction to recall the order accepting the final-report and releasing the accused. So, when the learned Magistrate in this case, accepted the final-report sub