SUPREME COURT OF INDIA

Before:- N. Santosh Hegde and S.B. Sinha, JJ.

Criminal Appeal No. 179 of 2005 (Arising out of SLP (Crl.) No. 875 of 2004). D/d. 25.1.2005.

Surendra Singh - Appellant

Versus

State of Bihar - Respondent

Criminal Procedure Code, Section 362 - Criminal Procedure Code, Section 173 - Review of order - Magistrate accepted the police report which stated "truth undetected" - By subsequent order of same day Magistrate taking cognizance - Magistrate cannot review its order - Subsequent order taking cognizance quashed.

[Paras 6 and 7]

Case Referred :-

Silao Police Station State v. Mithlesh Singh, Case No. 122/98-GR 629/98, decided on 8.12.2000.

ORDER

Heard learned counsel for the parties.

2. Delay condoned.

3. Leave granted.

4. The appellant herein has challenged an order dated 8-12-2000 made in Silao Police Station State v. Mithlesh Singh, Case No. 122/98-GR 629/98 by which the Chief Judicial Magistrate took cognizance of the offence punishable under Sections 302/201/34 Indian Penal Code.

5. It is the contention of the appellant that on the very same date prior to the order referred to hereinabove in the very same case the very same learned Chief Judicial Magistrate had after issuing notice to the complainant accepted the final report filed by the police and dismissed the complaint and having done so under Section 362 of the Criminal Procedure Code the very same court could not have reconsidered the first order which amounts to review of its own order which is impermissible in law.

6. We have perused the two orders referred to hereinabove and we do notice that in the first of the orders the learned Chief Judicial Magistrate recorded that even though the notice was sent to the informant along with the police report no one appeared on behalf of the informant and the prosecution has submitted the final report mentioning "truth undetected". He further stated that the case is pending from the year 1998, hence final report had to be accepted. Thus in the factual background of the case, after applying its mind the court accepted the final report of the police.

7. Surprisingly and for the reasons not noticeable in the subsequent order on the same date the learned Chief Judicial Magistrate proceeded to take cognizance of the offence referred to hereinabove. This as contended by the learned counsel appearing for the appellant amounts to review of its earlier order which is impermissible in law under Section 362 Criminal Procedure Code. Hence the subsequent order of taking cognizance is bad in law.

8. For the reasons stated hereinabove this appeal succeeds and the order of the learned Chief Judicial Magistrate dated 8-12-2000 by which he took cognizance. of the offence under Sections 301/201/34 Indian Penal Code against the appellant is quashed.

9. This, however, does not preclude or take away the right of the aggrieved person from pursuing any remedy available in law. For the reasons stated above, the appeal succeeds and the same is allowed accordingly.

Appeal allowed.