JUDGMENT - This is a petition under Article 227 of the Constitution of India, read with section 482 of the Code of Criminal Procedure, raising a very interesting point as to whether a Judicial Magistrate, First Class, having granted 'B Summary' to the Police, after investigation into an offence, can take cognizance of the same offence on the same set of facts in a complaint case subsequently. 2. Brief narration of facts which led to this controversy are as follows: That, in respect of an incident dated 25-2-1978, at Village Kurha, under Police Station Sirasgaon Kasba, Tahsil Achalpur, District Amravati, two reports were lodged by the contesting parties against each other before the Police Station, Sirasgaon Kasba. The earlier report was made by Shriram Thekal and came to be registered as crime No. 40/1978. The said report was against respondent No. 1 Tulsiram. This particular crime No. 40/1978 culminated into a charge sheet presented by that Police before the Judicial Magistrate, First Class, who took cognizance and proceeded with the case. 3. In respect of the counter report filed by the respondent No.1 Tulsiram, against present petitioner and respondents 2 to 7, the same Police Station registered it as Crime No. 41/1978 and on completing the investigation forwarded the report to the same Judicial Magistrate, First Class, Shri A. P. Lakhanikar, at Achalpur and in the said crime the learned Judicial Magistrate, First Class, granted B Summary of No. 579/1978 dated 14-8-1978. 4. It appears that respondent No.1 Tulsiram feeling apprehensive that the police machinery is not moving in the matter, preferred a private complaint case before the same Judicial Magistrate Shri Lakhanikar at Achalpur on 25-5-1978, wherein the present petitioner and the respondents 2 to 7 were arrayed as accused. The said complaint case was registered as Criminal Case No. 1214/1978. It is an admitted position that this complaint case earlier arises out of the same incident of 25-2-1978 at village Kurha and that in substance it is the same on the basis of which Crime No: 41/1978 was registered all the Police Station, Achalpur. 5. The learned Judicial Magistrate-First Class, on verification of the complaint on 30-6-1978 thought it necessary to call for a fresh police report in respect of the said complaint and directed accordingly under section 202 of the Code of Criminal Procedure. 5. The learned Judicial Magistrate-First Class, on verification of the complaint on 30-6-1978 thought it necessary to call for a fresh police report in respect of the said complaint and directed accordingly under section 202 of the Code of Criminal Procedure. The Police Station Officer submitted his report on 30-8-1978 before the Judicial Magistrate stating inter alia that they have investigated into the matter and found the complaint to be false. 6. The learned Judicial Magistrate, First Class, after receipt of the said report passed an order on 13- 10-1978 on perusal of the case papers and found that as per Police report the P. S. I. Sirasgaon Kasba had come to the conclusion that the incident is false, but he further stated that considering the injuries sustained by the complainant and considering the further fact of long standing enmity between the parties, truthfulness or falsity of the complaint cannot be decided at this stage. He further held that it deserves full trial and hence directed issue of process against accused persons for offences under several sections of the Indian Penal Code. The nature of offence is not material for decision of the present petition. 7. After the said order was passed by the Judicial Magistrate, First Class, Achalpur, the petitioner Bhaurao preferred a revision application before the learned Sessions Judge, Amravati and one of the grounds raised in the said revision petition was that the Judicial Magistrate having granted B Summary in Crime No. 41/1978, could not legally issue process in question, because the complaint case related to the case subject matter. It was also urged before the Sessions Judge, Amravati, that the order granting B Summary on a police report is a judicial order and a final order and, therefore, the learned Judicial Magistrate, First Class, could not review or revise its earlier decision on the same set of facts. 8. The learned Sessions Judge, Amravati, however, passed an order dated 18th April, 1979 and held that the learned Judicial Magistrate, was competent to take cognizance upon a complaint. He further held that the order of granting B Summary was not a judicial order in the sense that it will debar the learned Magistrate to take fresh cognizance of the same offence. He further held that the order of granting B Summary was not a judicial order in the sense that it will debar the learned Magistrate to take fresh cognizance of the same offence. He also referred to section 300 of the Code of Criminal Procedure, wherein an explanation is recorded to the effect that the dismissal of a complaint or discharge of the accused is not an acquittal for the purposes of this section and, therefore, he came to the conclusion that it does not amount to double jeopardy as far as the petitioner's case is concerned. He also held that the provisions of section 362 of the Criminal Procedure Code are not applicable for the present case inasmuch as it was not a final order when he granted B Summary. Having arrived at this conclusion the learned Sessions Judge, dismissed the revision application and feeling aggrieved by the same, the petitioner has come up to invoke the inherent jurisdiction of this Court to set right the matter. 9. Shri V. C. Palshikar, the learned counsel for the petitioner urged almost on the same line that the order of the Judicial Magistrate, First Class, in granting B Summary is a judicial order and there is a finality to the same. He further submitted that the learned Sessions Judge, Amravati erred in coming to the conclusion that the Magistrate could take cognizance on the same set of facts in a complaint case and lastly he urged that section 362 of the Criminal Procedure Code poses a bar to the Judicial Magistrate from reviewing or revising his earlier order by taking cognizance of the same offence afresh. 10. Shri Sinha, the learned Advocate for the respondent No.1 urged that on the analogy of the rules in respect of the fresh complaint which can be entertained by the Judicial Magistrate in exceptional circumstances it can legitimately be stated that even though the Magistrate by judicial order has granted B Summary in a particular offence, the same Magistrate can take cognizance of the same offence in a complaint case in spite of the adverse police report. 11. Shri V. P. Salve, the learned Public Prosecutor, assisted this Court in respect of the scheme of investigation and of taking cognizance of the offences is concerned and also referred to some of the leading decisions of the Supreme Court. 11. Shri V. P. Salve, the learned Public Prosecutor, assisted this Court in respect of the scheme of investigation and of taking cognizance of the offences is concerned and also referred to some of the leading decisions of the Supreme Court. Shri D. L. Dharmadhikari, the counsel appearing for the respondent Nos. 2 to 7, adopted the arguments of the petitioner. 12. The points which need to be discussed are: 1. The scheme of the Criminal Procedure Code as far as the statutory authority of the police investigation are concerned; 2. The discretion of the criminal Court in taking cognizance of an offence. 3.Whether taking cognizance is a judicial order. 4. Whether such an order is a final order. 13. The point No.1 calls for a brief analysis of the scheme of investigation into offences by the police officers as it is stated in Chapter XII of Criminal Procedure Code. This Chapter deals with the information received by the Police in respect of a cognizable offence, non-cognizable offences, and the Police Officer's power to investigate the cognizable offence, procedure for investigation, etc. The relevant provisions, however, are section 169 of the Criminal Procedure Code where upon the investigation the Police Officer feels that the evidence is not sufficient to create reasonable grounds of suspicion against the accused to justify his forwarding of the accused to a Magistrate, such person in custody, he may release the accused after getting the bond executed from the accused to ensure his appearance before the Magistrate who has jurisdiction to deal with the matters relating to that particular police Station as and when required. Section 170 of the Code refers to cases where the police officers come to the conclusion after investigation that there is sufficient evidence against the accused to justify his being forwarded before a Magistrate for facing a trial, he shall take him in custody and produce before the Magistrate or if the offence is bailable he may secure a bond and produce before the Magistrate empowered to take cognizance. Section 171 is procedural, whereas section 172 deals with maintaining a case diary of the investigation by a Police Officer. 14. The material section in this chapter is section 173 of the Code which deals with the police reports. Section 171 is procedural, whereas section 172 deals with maintaining a case diary of the investigation by a Police Officer. 14. The material section in this chapter is section 173 of the Code which deals with the police reports. It specifically lays down under subsection (2) of section 173 that as soon as the investigation is complete, the officer-in-Charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government containing: (a) the names of the parties; (b) the nature of the information; (c) the nature of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) Whether the accused has been arrested; (f) Whether he has been released on his bond and, if so, whether with or without sureties. (g) Whether he has been forwarded in custody under section 170. This section clearly shows that the police report has to be in a form prescribed by the State Government. Therefore, this Code recognises the particular procedure including the report in the form prescribed by the State Government. The learned Sessions Judge, while discussing this aspect appears to have lost sight of this particular clause, where he says that there is no provision in the procedure for granting of A Summary, B-Summary or C Summary. He has, however, referred to the decision of this very Court reported in State and others v. Murlidhar Goverdhan and others1 wherein it has been mentioned that though there is no provision in the Code for classification of offences or for issue of summaries by a Magistrate, yet the classification is made and the summaries are granted under paragraph 219 of Volume II of the Police Manual. This particular rule provides that when a report is to be made by the police to a Magistrate under section 173 of the Code of Criminal Procedure, he should prepare the same in a prescribed form and request the Magistrate to classify the accused and to issue a proper summary. In the said judgment their Lordships have also discussed as to what is meant by summary A. B. C. 15. In the said judgment their Lordships have also discussed as to what is meant by summary A. B. C. 15. The other material provision is in section 173 (2) (d) where the Police Officer in his report has to mention whether any offence appears to have been committed and, if so, by whom. This clearly shows that at the stage when he is making a report after investigation, the Police Officer has to give his opinion whether offence appears to have been committed or not and in case it appears to have been committed, then by whom it has been committed. Sub-section (5) of section 173 is also material inasmuch it specifies when such report is in respect of a case to which section 170 applies i.e. when the Police Officer is of the opinion that there is sufficient evidence to prosecute the accused. It is, therefore, clear to my mind that whether the police report is on the basis of the information of the Police under section 169 or 170 i.e. where upon the investigation the police finds sufficient evidence against the accused or not, the report has to be forwarded to the concerned Magistrate, under section 173 (2) of the Code. This is as far as the investigation and final report of the police is concerned. 1. A I R 1960 Bom 240. 16. Now, the other relevant Chapter in his scheme is Chapter X IV which states the condition requisite for initiation of proceedings. The material section 190, which states as follows: "190 (1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer. or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 17. It is thus clear that the powers of the Judicial Magistrate are unhindered in the matter of taking cognizance of an offence. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 17. It is thus clear that the powers of the Judicial Magistrate are unhindered in the matter of taking cognizance of an offence. It is up to him to take cognizance of the offences within his jurisdiction either upon a complaint stating the fact which constitute an offence or upon a police report stating such facts. The Magistrate also can take cognizance upon his own knowledge or upon information received from any person other than police officers. It will thus be seen that whether the police investigating machinery finds insufficient evidence to prosecute the accused or finds sufficient evidence to prosecute the accused, a report has to be tendered under section 173 (2) of the Code before the Magistrate concerned and it is ultimately the Judicial Magistrate, who has to apply his mind to the facts and circumstances as brought out in the report and he may take cognizance or he may refuse to take cognizance. It is in this light that B summary is granted by the Judicial Magistrate when he refused to take cognizance of the offence and all the proceedings are filed. 18. Now, it has been established by several decisions of our High Court, notably those mentioned in State and others v. Murlidhar Goverdhan and others and Krishna Gundu Potjale and another v. State'J, that even granting of B Summary is a judicial order and Dot an administrative order. This view has now been given a finality even by the Supreme Court in its decision in Abhinandan Jha and others v. Dinesh Mishras. 19. Having arrived at this conclusion from the scheme of the Code itself, I have no hesitation to hold that when the learned Judicial Magistrate I granted B Summary upon a police report under section 173 t2) of Code, the said order was a judicial order inasmuch as after applying its mind the ,I learned Magistrate refused to take cognizance of an offence. 20. Last point to be considered is whether such order is a final order and whether the order refusing to take cognizance is a final order. It is an admitted position that after the statutory powers of the police investigating 2. 1966 Mh. 20. Last point to be considered is whether such order is a final order and whether the order refusing to take cognizance is a final order. It is an admitted position that after the statutory powers of the police investigating 2. 1966 Mh. L J 54=A I R 1966 Bom. 145. 3. A I R 1968 S C 117. II machinery are exhausted and they submit a report before the Judicial Magistrate under section 173 (2) of the Code, the Judicial Magistrate applies his mind and passes an order either accepting the report or rejecting the report i. e. either granting A Summary i. e. to take cognizance or granting B Summary i. e. to refuse to take cognizance. In any event, the proceeding under section 173 (2) which is tendered in the shape of a report before the Judicial Magistrate, comes to an end when an order under section 190, one way or the other, is passed by the Judicial Magistrate. In the circumstances of the case, therefore, when the Judicial Magistrate refuses to take cognizance of an offence and files the proceeding that gives a finality to the said proceeding. Therefore, it is a final order at that stage. 21. In the instant case, after having refused to take cognizance the two principles are fulfilled, namely, that the Judicial Magistrate has applied its mind, and passed a final judicial order. It is thereafter that the private complaint filed by respondent No.1 came before the same Magistrate under section 200 of the Code. The learned Judicial Magistrate thought it necessary to call for police report and to investigate into the complaint before him. This was done by the learned Judicial Magistrate by issuing directions under section 202 of the Code. The investigating officer submitted his report as already narrated above stating that the complaint is false and there is nothing to sustain the allegations in the complaint. The Investigating Officer also pointed out that in respect of the same offence, Crime No. 41/1978 was registered at the police station and in the earlier investigation also the police authorities prayed for B Summary when they submitted the report before the same Magistrate and that the same was granted. 22. The Investigating Officer also pointed out that in respect of the same offence, Crime No. 41/1978 was registered at the police station and in the earlier investigation also the police authorities prayed for B Summary when they submitted the report before the same Magistrate and that the same was granted. 22. It is surprising that having once applied its mind to the facts of the case and having come to the conclusion that there is no question of taking cognizance of an offence in these proceedings, the learned Magistrate thought it fit the second time to take cognizance and issue process to the accused. It is not out of place to mention here that there are cases where, even if a private complaint is dismissed or the accused is discharged, a fresh complaint can be entertained by the Judicial Magistrate. But their Lordships of the Supreme Court have cautioned that the powers can be exercised by the Criminal Courts only in exceptional circumstances, such as availability of new material or documents or additional investigation having been conducted by the police and more incriminating evidence having transpired therein. Shri Sinha, for this proposition, relied on A I R 1962 Supreme Court 876 (placitum C) and further submitted that the analogy can be drawn from this case to the facts of the present case, inasmuch as here even though after police investigation the Court had refused to take cognizance, the Court on the bass of the private complaint and in spite of the adverse police reports, the learned Magistrate was entitled to take cognizance and issue process to the accused. To my mind, there are no new circumstances or extra-ordinary circumstances brought on record. Shri Sinha urged that while issuing process to the accused, the learned Magistrate bas mentioned that the police report is adverse but in view of the injuries sustained by the complainant and the long-standing enmity between the parties, he thought it fit to issue process. It is, however, admitted by Shri Sinha during arguments that the complainant in any case was forwarded for medical examination by the police when the Crime No. 41/1978 was registered at police Station Achalpur. It is, however, admitted by Shri Sinha during arguments that the complainant in any case was forwarded for medical examination by the police when the Crime No. 41/1978 was registered at police Station Achalpur. In that view of the matter, it is clear that the fact that complainant had sustained injuries and that he was sent for medical examination was within the knowledge and information of the investigation officer and was not an extra-ordinary or a new circumstance at the time of the complaint and, in any case, even if the injury report was not available earlier, yet when the report under section 202 of the Code of Criminal Procedure was asked for by the learned Judicial Magistrate, by that time the police had information of the said injury report. Therefore, he merely because in the order the Judicial Magistrate has expressed that in view of the injuries sustained, he was inclined to issue process is not a ground which would entitle him to review his earlier order. 23. As pointed out by Shri Palshikar, the learned counsel for the petitioner, section 362 of the Code of Criminal Procedure in terms bars a court to alter or review its own judgment or final order disposing of the case. In my opinion, this section also will govern the instant case inasmuch as the learned Judicial Magistrate having passed a judicial and final order earlier and having disposed of the case, cannot now take another view and order issue of process to the accused. 24. Shri V. P. Salve, Assistant Public Prosecutor for the. State also pointed out the ruling in Abhinandan Jha and others v. Dinesh Mishra, which gives a complete picture of the scheme embodied in the Code of Criminal Procedure in respect of investigation of offences by the police officers and in the matter of discretion of the Court in taking or refusing to take cognizance of the said offence. He also pointed out the leading case in respect of interlocutory orders and final orders decided by the Supreme Court in Madhu Limaye v. State of Maharashtra4. Their Lordships have held that when the Court frames a charge then that amounts to a final order and not an interlocutory order. He also pointed out the leading case in respect of interlocutory orders and final orders decided by the Supreme Court in Madhu Limaye v. State of Maharashtra4. Their Lordships have held that when the Court frames a charge then that amounts to a final order and not an interlocutory order. Their Lordships have also discussed the meaning of the word "interlocutory" on the basis of several authorities as well as Halsbury's Laws of England and have come to the conclusion that interlocutory order is understood and taken to mean as converse of the term "final order". They have also enunciated the principles and have formulated the definition of the word "final order". They have characterised final order and interlocutory order in different sets of circumstances and how a particular order can be interlocutory for one purpose but final for other purpose. 25. In the instant case, when the order granting B Summary is passed it virtually pronounced that the accused is not to be implicated for purposes of facing a trial for one of the offence and that directly ensures his liberty. Once that has been concluded by a judicial order, in my opinion, it is tantamount to a final order and the same, therefore, cannot be reviewed by the same Court, merely because an independent case has been filed on the same set of facts. 26. Shri Sinha, the learned counsel for the respondent No.1 also urged while supporting the impugned order of the learned Sessions Judge, 4. A I R 1978 S C 47. that in any case when B Summary was granted by the Judicial Magistrate, none of the parties were heard and, therefore, it will not operate as res judicata, while issuing process in a complaint case. He has also drawn my attention to section 300 of the Code of Criminal Procedure, wherein an explanation has been appended stating that the dismissal of a complaint, or the discharge of the accused, is not acquittal for the purposes of this section. To my mind, both these arguments are not on sound footing inasmuch as for a judicial finality of the proceeding, it is not always necessary that both the parties have to be heard. To my mind, both these arguments are not on sound footing inasmuch as for a judicial finality of the proceeding, it is not always necessary that both the parties have to be heard. It is to be seen in the present case that the statutory authority given to the police for investigation into the offence is embodied in Chapter III of the Code of Criminal Procedure, that was duly exercised by the police. It is then that the Judicial Magistrate had to apply its mind and exercise his judicial discretion in either accepting the report by taking cognizance or by refusing to take cognizance under section 190 of the Code of Criminal Procedure. As regards section 300 referred to by the counsel for the respondent No.1, it will have no application to the present case inasmuch as the explanation to section 300 itself says that it is for dismissal of complaint or discharge of an accused are not acquittal for the purpose of that section. Here in the instant case, the accused was not discharged as such, but the accused was not at all charged on the basis of the police report itself, but at the same time, it had given finality to the police report under section 173 (2) of the Code of Criminal Procedure. Even otherwise, 1 have already held that it was a judicial order giving finality to the proceedings and, therefore, under section 362 of the Code, the Judicial Magistrate was barred from reviewing or altering the said order on its own. In this view of the matter, I have no hesitation in allowing this petition and reversing the order impugned. Hence, the following order. 27. Criminal Application No. 257/1979 is allowed. The impugned order in Criminal Revision Application No. 3/79 decided by Sessions Judge, Amravati, on 18-4-1979, is quashed and set aside as also the order dated 3-10-1978 passed by the Judicial Magistrate, First Class, Achalpur in Criminal Case No. 1214/1978 is quashed and set aside and process issued against the accused in the said case, if any, are cancelled. No order as to costs. Petition allowed.