MATHUR, J.— This is a reference made by a learned Single Judge of this Court by order dated 23-1-1990 that whether the acceptance of the final report by the Magistrate amounts to Judicial order on an administrative order. In this connection, the learned Single Judge referred to two inconsistent judgments one in Dadam Chand, Vs. State of Rajasthan (1) and another view taken by Honble G.K.Sharma, J., as he then was, in Jawahara Ram Vs. The State (2). In view of the inconsistency in the two judgments referred to above, the learned Singh Judge referred the matter to Honble Chief Justice that let this controversy may be resolved by a larger bench. The Honble Chief Justice in turn sent this case to the Division Bench for resolving this controversy whether the order passed by the learned Magistrate accepting the final report amounts to judicial order or an administrative order.

2. Under Section 173 Cr.P.C. when police submits a report whether any offence is made out or not, it is open for the Magistrate that he can accept the police report or he can take cognizance under Section 190(1) (b) Cr.P.C. In any case he has to apply his mind and thereafter pass the order accepting or rejecting the final report. This discretion exercised by the learned Magistrate under the provisions of the Criminal Procedure Code, 1973 cannot be said to be an administrative order. The acceptance and non-acceptance involves exercise of dis-cretion by the learned Magistrate and he has to pass the order under the provisions of the Criminal Procedure Code. As such it cannot be said that the order passed by the learned Magistrate is an administrative order. Moreover, this question is no more res integra because in a series of judgments this Court has taken the view that the order passed by the learned Magistrate accepting the final report is a judicial order and is not an administrative order. In fact, the attention of Honble G.K. Sharma, J. was not invited to the two judgments of this court in the case of Mangi Lal Vs. The State of Rajasthan (3) decided by Honble M.C. Jain, J. and in Dadam Chand Vs. State of Rajasthan (Supra). But subsequently when the attention of Hon,ble G.K. Sharma, J. was invited to the judgment of this Court is Dadam Chands case (supra), Honble G.K. Sharma, J. also took the view that the acceptance of final report by the learned Magistrate is a judicial order in Immamuddin vs. State of Raj. (4). In Jawahara Rams case (supra) Honble G.K. Sharma, J., relied upon the judgment given by Honble Farooq Hassan, J. in Gopal Ram Bhada vs. State of Raj. (5). and Honble Farooq Hasan, J. relied upon the decision given by this Court in Pukhraj vs. Sheeshmal (6).

3. The case of Pukhraj (supra) was considered by one of us (Bhatnagar, J.) in Dadan Chands case (supra) and the position of law was explained while relying upon the various decisions of Honble Supreme Court and other High Courts.

4. Similarly, Honble Jain, J. in Mangi Lals case (supra)relying the various judgments upon of the Supreme Court also took the view that such an order is judicial in character and not of administrative in nature.

5. It seems that while deciding the case of Jawahara Ram (supra, the attention of the Honble Judge was not invited to the earlier judgments reported in Mangilals case (supra) and Dadam Chands case (Supra). But when the attention of Honble G.K.Sharma, J. was invited to the decision of this Court in Dadam Chands case and Abhinadan Jha vs. Dinesh Mishra (7) he readily agreed with the reasoning given in the aforesaid case and held in Immamuddins case that such order is judicial in character. Honble Sharma, J. in Immamuddins case observed as under :-

Magistrate accepted the Final Report submitted by police and released the accused-Such order is judicial order-Subsequently he took cognizance of offence against accused on the basis of same allegations. Held, Magistrate had no jurisdiction to recall the order accepting F.R.-Order taking cognizance against the accused amounted

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