DAVE, J.—This reference comes on the report of the learned Additional Sessions Judge, Ganganagar, dated the 28th of March, 1951.

2. The facts giving rise to it are that on the 11th March, 1960, one Bachan Singh lodged a report at Sadar Police Station, Ganganagar, against one Mastan Singh, in which it was alleged that Mastan Singh had committed offences under sec. 447 and 323 I.P.C. On investigation, it was found by the police that the charges levelled against Mastan Singh were false. Accordingly, a final report under sec. 173 Cr. P. C. was filed and it was accepted by the Sub-Divisional Magistrate, Ganganagar, on 4th July, 1960. On 6th August, 1960, the Station House Officer, Sadar, Ganganagar, filed a complaint in the court of the Sub-Divisional Magistrate, Ganganagar, against Bachan Singh under sec. 211 I.P.C. On 8th September, 1960, counsel for the accused raised an objection that the offence alleged to have been committed by his client was in relation to proceeding in the Magistrates court and therefore the complaint could be filed only by the Magistrate on account of the provisions of sec. 195, sub-sec.(1)(b) Cr. P. C. and the court had no jurisdiction to take cognizance of the offence on a complaint by the police. This objection was turned down by the court on 28th January, 1961. Aggrieved by that order, Bachan Singh filed a revision application. The learned Additional Sessions Judge, Ganganagar, who heard that application, was of opinion that the final report having been accepted by the Sub-Divisional Magistrate, the trial court could not take cognizance of the offence on a complaint by the police and therefore he has recommended that the accused should be discharged.

3. Learned counsel for the accused Bachan Singh supports the reference. Learned Assistant Government Advocate, on the other hand, contends that the view taken by the Additional Sessions Judge, Gangangar, is not correct.

4. Learned counsel for accused Bachan Singh relies on J.D. Boywalla Vs. Sorab Rustomji Engineer (1). In that case, the police had started investigation on receipt of a complaint and a person was arrested and released on bail. After investigation, the police made a report to the Magistrate that no offence was disclosed against the person who was arrested and that he should be discharged and his bail bond be cancelled. On this report, the Magistrate discharged the accused. Thereafter, the accused, who was discharged, filed a complaint under sec. 211 I.P.C. It was held that the order of discharge passed by the Magistrate was a judicial order and therefore the complaint under sec. 211 I.P.C. should also have been made by him. It is clear from the facts, noted above, that although an order of discharge on a final report by the police under sec. 173 Cr. P. C. was not strictly necessary the Magistrate had passed an order of discharge, but in the present case the Sub-Divisional Magistrate had only accepted the final report under sec. 173 Cr.P.C. and no judicial order was passed by him.

5. Learned counsel has next referred to Bajaji (Bayaji) Appaji Kote Vs. Emperor (2). In that case, one Bayaji Appaji had given information to the police that one Amolak Khushal was in possession of wheat stolen from his house. This allegation was investigated by the police and found to be false. On a report made by the police under sec. 173 Cr.P.C, the Sub-Divisional Magistrate granted a B summary and the police then sent a charge-sheet against Bayaji Appaji under sec. 211 I.P.C. It appears that Bayaji Appaji had also filed a regular complaint on the same facts before the Resident Magistrate, Belapur Road, and that complaint had also ended in the discharge of the accused. It would thus appear that in the said case (1) also there was a complaint before a Magistrate and it was decided by a court. This case (2) is also distinguishable from the present one inasmuch as there was no complaint before a Magistrate.

6. Learned counsel had next referred to State Vs. Vipra Khimji Ga

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