An order accepting a final report under Section 362 Cr.P.C. is a final order that cannot be recalled without sufficient reasoning, although procedural reviews may be permissible under specific circumstances.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri Indra Deo Mishra, learned counsel for the applicants, Sri Brijesh Kumar, learned counsel for opposite party no.4 and Sri Pankaj Saxena, learned AGA for the State.

2. The present application has been filed to set aside the order dated 25.01.2024 passed by Additional Sessions Judge/Special Judge, POCSO Act, Prayagraj in Criminal Misc. Case No.79 of 2023, arising out of Case Crime No.415 of 2014, under Sections-147, 354Kha, 323, 504, 506 IPC and Section 7/8 of POCSO Act, Police Station-Meja, District-Allahabad.

3. Facts giving rise to the present controversy is that an FIR dated 09.10.2024 was lodged by opposite party no.4 against the applicants in Case Crime No.415 of 2014, under Sections-147, 354Kha, 323, 504, 506 IPC and Section 7/8 of POCSO Act making allegation against the applicants that they have sexually assaulted his minor daughter. Police after the investigation submitted final report in that case on 24.08.2018. After receiving the final report, learned Magistrate issued notice to the opposite party no.4 but opposite party no.4 could not appear before the court. Thereafter, the concerned court accepted the final report vide order dated 19.10.2023. Thereafter, the opposite party no.4 filed an application on 18.12.2023 to recall the order dated 19.10.2023 along with protest petition to reject the final report no.238 of 2018. The court below vide impugned order dated 25.01.2024 after recalling the order dated 19.10.2023 registered the protest petition of the opposite party no.4 as complaint case which is under challenge in the present petition.

4. Contention of learned counsel for the applicants is that after investigation in case crime no.415 of 2024, u/s 147, 354Kha, 323, 504, 506 IPC and Section 7/8 of POCSO Act, registered against the applicants, final report was submitted by the police. Thereafter, despite receiving the notice, first informant did not appear and court finally accepted the same vide order dated 19.10.2023. Thereafter, recall application along with protest petition was filed by opposite party no.2 on 18.10.2023 which was allowed and the order dated 19.10.2023 by which the final report was accepted was recalled and case was registered as complaint case without giving any reason. Even same amounts to review of the order dated 19.10.2023, which is barred by Section 362 Cr.P.C. In support of his contention, learned counsel for the applicants has also relied upon the judgement of a coordinate Bench of Gauhati High Court in Hazi Mahamud Ali Vs. The State of Tripura reported in 2006 0 CrLJ 4259 wherein it is observed that when the order has been passed in criminal court on merit, same cannot be recalled being barred by Section 362 Cr.P.C.

5. Per contra, learned counsel for opposite party no.4 has submitted that even after accepting the final report, there is no bar of taking cognizance by the Magistrate, if there is sufficient material on record. Therefore, there is no illegality in the impugned order. In support of his contention, learned counsel for the opposite party no.4 has relied upon the judgement of the Supreme Court in the case of Kishore Kumar Gyanchandani Vs. G.D. Mehrotra & Another reported in AIR 2002 Supreme Court 483 as well as judgement of Munilal Thakur and others etc. Vs. Nawal Kishore Thakur and another reported in 1985 CRI.L.J. 437 and also the judgement of co-ordinate Bench of this Court in the case of Safdar Vs. State of U.P. And Others reported in 2008 (6) ADJ 64, wherein it is observed that even if the final