ORDER
S.R. Bannurmath, J.
1. Heard the learned Counsel for the petitioners.
2. The petitioners are challenging the order dated 4-4-2002 passed by the learned I Additional Chief Judicial Magistrate (Senior Division), Mangalore, in P.C. No. 21 of 1999 practically recalling its earlier order dated 7-12-2001. The respondent had filed a complaint against the petitioners for the offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506 read with Section 149 of the IPC. On receipt of the complaint, the same was referred for investigation to the jurisdictional police under Section 156(3) of the Cr. P.C. On investigation, the policesubmitted their 'B' report. When the 'B' report was placed before the learned Magistrate, on 7-12-2001 holding that no objections or protest petition is filed by the complainant against the acceptance of 'B' report, accepted the final report and stated that Tile shall stand closed'. Thereafter, on coming to know of this order, the complainant moved the matter inter alia contending that the observation of the Trial Court that lie had not filed any protest petition is incorrect as he has already filed a protest petition which was not considered and as such prayed that it is a fit case to reopen. After hearing both the sides, by the impugned order the learned Magistrate noted that there is a mistake on the part of the Court in accepting the 'B' report by oversight without considering the objections or the protest petition filed by the complainant and as such ordered for placing the complaint and 'B' report for further consideration. As against this Act, the present petition is filed.
3. Learned Counsel for the petitioners submit that under Section 362 of the Cr. P.O., no Court can alter or review its own judgment once it is signed, unless there is any correction of clerical or arithmetic error to be carried out. In this regard, learned Counsel has relied upon the pronouncement of this Court in the case of Kencha v. State of Karnataka ILR 1985 Kar. 2819, which has laid down that:
'Section 362 of the Cr. P.C. says that except as otherwise provided in the Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of the case shall alter or review the said judgment or order except to correct a clerical or arithmetical error. The present Section 362 corresponds to old Section 369 except for a slight change and one such change brought about in the new section is that apart from a judgments a final order disposing of a case is also brought within the scope of Section 362. In that way the scope of the section is widened'.
There cannot be any dispute regarding this proposition. However, whether the order of acceptance of 'B' report is a judgment finally adjudicating the dispute between the parties is to be considered in this case. The Division Bench of this Court in the case of J. Alexander v State by Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore, : ILR1995KAR2578 has after considering large number of decisions held that:
'13. .. at the stage of acceptance of 'B' report all that happens is that the Court accepts the 'B' report on the basis of the material as available then. Even if further fresh material is discovered which calls for further investigation and if such investigation is not allowed then such course would be stultification of law and logic resulting in miscarriage of justice. In a country where there is cancerous growth of corruption with close links between the bureaucracy and politicians and such acts being done under shrouded mystery, it is difficult to assume that all facts could be revealed in one stroke. In such cases great effort is needed todiscover material and after securing farther material, if the police seek to investigate the matter, the provisions of law cannot be interpreted to stifle such course of action. An order accepting the 'B' report is not an immunity granted to an accused person, but merely a temporary relief subject to further investigation in the event good and fresh material is secured and investigation done. It is also possible that a sloppy or a dishonest Investigating Officer connives with the accused and sends up a 'B' report and if the higher officers discover the same and collect fresh or further material could it be said that the mere acceptance of 'B' report sent by the junior officer would still stand even on discovery of such material and further investigation done by the police? Such a course would lead to startling results. We do not think that is the intention of the Criminal Procedure Code either under Section 173(4) or 173(8). A provision of law must be expected to read in such a manner that it advances the cause of justice and the interest of public, but not merely to bear in mind an action taken by the Court while supervising investigation. Such act though characterised as judicial is nevertheless of supervisory character because at different stages of investigation different kinds of control are exercised by the Court'.
4. In an almost similar situation as in the present case also a learned Single Judge of this Court in the case of Lagamanna Gangappa Salagere v Laxman and Ors. 2001(1) Kar. L.J. 189 : ILR 2000 Kar. 4015, has held that acceptance of 'B' report by Magistrate is only a tentative act and it does not amount to clean acquittal given to the accused as it is further open for the investigating agency to make further investigation in respect of the crime and submit the report different than the 'B' report already filed and as such reconsideration of such acceptance of 'B' report by the learned Magistrate is not an illegal act.
5. As such, in agreement with the aforesaid two pronouncements, I am also of the view that the provisions of Section 362 of the Cr. P.C. are not at all attracted inasmuch as the order of acceptance of 'B' report is not at all a judgment in the strict sense as is required under the Code of Criminal Procedure. If that is so, recalling of its earlier order of acceptance of 'B' report on noticing prima facie mistake committed by the Court cannot be said to be illegal or perverse. Even otherwise, accepting the contentions of the learned Counsel for the petitioner for a moment, it can be seen that once there is an apparent mistake committed by the Court below in procedural aspect by noting non-filing of protest petition even though such protest petition was filed by the complainant, it is always open for this Court to correct such mistake in order to do justice to the parties concerned. As such even irrespective of the fact that the learned Magistrate has recalled the order by his impugned order, the same mistake can be set right by this Court stating that the mistake was apparent on the part of the order of the learned Magistrate and the order of acceptance of 'B' report could have been recalled and the protest petition of the complainant should have been considered.
6. Considering these aspects in any angle, I am of the view that the action of the Magistrate cannot be found fault with and hence I see no merit. Accordingly, the petition is rejected.