The order accepting the final report u/s 173(3) CrPC is not a final order and does not preclude the Magistrate from taking cognizance on the basis of further materials brought to his notice u/s 173(8) CrPC.

JUDGMENT :

L. Rath, J. - The question that falls for decision in this case is the competence of the Magistrate to permit further investigation into a case after accepting the final report submitted by the police in the same case. The facts necessary to disclose the prosecution case are that an FIR was lodged on 28-4-1987 by the D.S.P., Vigilance (Special Ceil), Cuttack on the allegation that the petitioner, while he was the S.P., Signals had misused his official position by starting a training institute under the name and style "Career Institute" in his official residence oriented at giving coaching to trainees. For the purpose, he made advertisements in the papers and attracted young persons for admission in the institute. Pamphlets, application forms and prospectus were prepared utilising office papers. The forms were also typed and cyclostyled using the office machines. The petitioner collected Rs. 140/- from different candidates at the rate of Rs. 5/-from each, through money orders or postal orders, between 17-9-1985 to 11-12-1985.The institute however was not started but the money was not refunded to the candidates and was misappropriated. The prosecution of the petitioner was, however, not sanctioned and final report was submitted u/s 173(2). On 21-12-1988 the learned Chief Judicial Magistrate, Cuttack passed orders as follows :

"Perused the final report submitted by the I.O. The case is returned on F.R.T. u/s 5(2) read with 5(1) (c) and (d) P.C. Act/409/420 IPC due to want of sanction order from the competent authority. The final report is accepted. Return the seized articles/documents to the person from whom seized."

2. On 24-11-1990 an application was filed before the C. J M., Cuttack by the inspector of Vigilance, Cuttack Shri P.C. Patra, the I. O. in the case, that the final report No. 14 dated 15-11-1988 had been, submitted in the case as sanction for the prosecution was, not received from the competent authority but that some new materials, having come to light in the meantime and the petitioner having retired from Government service, sanction for his prosecution was not necessary and orders might be passed to re-open the investigation and submit the final form afresh after further investigation.

3. The learned C.J. M. allowed the prayer on 26-11-1990. On 16-3-1991 the petitioner filed an objection before the C.J.M. seeking rescinding of the order of 26-11-1990 to which the Special Public Prosecutor, on behalf of the State, filed objection. The learned C.J.M. after considering the objection overruled the contention that after acceptance of final report the Court had no power to re-open the case for further investigation. The learned C.J.M. also held that since order had been passed on 26-11-1990 to re-open the case for further investigation, it was not within his power to review the order as it would be encroaching upon the powers of the revisional Court. The petition having been rejected, the present application has been filed u/s 482, CrPC to quash the order of 26-11-1990 and the proceeding. Vigilance G.R. Case No. 30 of 1987 pending in the Court of the C.J.M.

4. Mr. Mohapatra, learned counsel for the petitioner, has urged that the acceptance of the final report by the C. J. M. was a judicial act and' since that order had become final not being challenged before any higher' fcrurn,' it was not competent for the learned Magistrate to again direct" re-opening of the case for further investigation there being no power of the' C.J.M. to review his own earlier order. To substantiate the submission that acceptance of final report is a judicial act, reliance was placed by him on 1988 (II) OLR 288 (Jaladhar Das and Ors. v. Sridhar Das), Kamlapati Trivedi Vs. State of West Bengal, and Jitendra Nath Ghosh and Another Vs. The State. The argument is opposed by the learned Addl. Govt. Advocate contending the order passed accepting the final report to be not a final order and in no way curtailing the power of the Court to take cog