Cancellation of Case

CANCELLATION OF CASE CANCELLATION OF CASE By Khadim Hussain Malik* (Rtd.) District and Sessions Judge, Lahore The Criminal Procedure Code does not provide in specific terms for the cancellation of a case. However, this question was considered and decided by the Full Bench of Lahore High Court in the case of Wazir v. State1. The facts of the case are that the police had presented an incomplete challan to the Magistrate for the purpose of trial. Before the Magistrate took any action on the challan the police sent another report recommending "discharge" of the accused. Acting on the subsequent report the Magistrate proceeded to discharge the accused. As there was only one accused the discharge order in fact amounted to cancellation of the case. In High Court, the question arose:- Whether after the police has sent a report under section 173 for the trial of a case and before any steps have been taken towards the commencement of the trial, the Magistrate can, on a second report by the police recommending cancellation, accept the second recommendation, and not proceed with the trial of the first challan?" There was an earlier decision by a Division Bench of Lahore High Court, Lahore in the case of Muhammad Nawaz v. The Crown involving similar proposition, wherein, it was observed that after receipt of challan the Court cannot discharge an accused by invoking the provisions of subsection (3) of section 173, Cr.P.C. without hearing of prosecution evidence; that this provision was applicable only if an accused had been released by the Police on his own bond under section 169, Cr.P.C. In view of that judgment, Hon'ble Mr. Justice M.R. Kayani C J referred the case to a Full Bench for answering the following specific propositions:-- (i) Whether when a challan is received by a Magistrate, he takes cognizance of the case? (ii) Whether in the event of a second report by the police recommending cancellation of the case, he can accept the report before he has started with the trial, in pursuance of the first challan? The Full Bench held that:- "It would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan has been presented before him. The police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to start the proceedings. In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, (but) if he keeps it waiting until another report should come or until whatever is wanting should be made he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case". On the basis of Muhammad Nawaz's case (supra) the counsel for the respondent argued that cancellation could not be made under subsection (3) of section 173, Cr.P.C. and that apart from that sub-section there was no other provision which enabled a Magistrate to cancel a case. He further contended that the said subsection was applicable only to a case where the accused had been released on his own bond under section 169, Cr.P.C. The Full Bench disagreed with this contention and concluded that the cancellation power is inherent in section 173, Cr.P.C. read with section 190, Cr.P.C. though the language of subsection (3) of section 173 does not directly apply to the case. The Full Bench judgment of Lahore High Court in Wazir v. State has been approved by Hon'ble Supreme Court in Bahadur v. State wherein it was observed that "Neither section 173, Cr.P.C. nor any other provision of the Criminal Procedure Code specifically deals with the question of cancellation of registered criminal case. In the Full Bench decision Wazir v. State such a power was found to be "inherent in section 173 read with section 190 of the Code of Criminal Procedure though the language of subsection (3) does not specifically apply to the case" ". The Wazir case is consistently being followed by Superior Courts. II. PROCEDURE FOR SUBMISSION OF REPORT FOR CANCELLATION OF FIR Rule 24.7 of Police Rules, 1934 Vol.III, Chapter XXIV prescribes the procedure for submitting a report for cancellation of FIR to the Magistrate, "empowered to take cognizance of the offence on a police report and to try the accused or send him for trial". It reads as under:- "24.7. Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of a 1st Class. When information or other intelligence is recorded under section 154, Cr.P.C., and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for order of cancellation. On receipt of such an order the officer in charge of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate cancelling the case with number and date of order. He shall then return the original order to the Superintendent's Office to be filed with the record of the case. 24.8.---(1) Each Superintendent shall maintain a register of cognizable offences in Form 24.8(1), styled the English Register of Cognizable Offences. The serial number in column one shall commence and end with the calendar year. Cases cancelled or transferred shall be erased by ruling a red line through them, and shall, at the end of the year, be deducted from the total." The only situation where a move for cancellation of a registered case can be made are, therefore, those in which the information is found to be:- a. maliciously false, b. false owing to mistake of law, c. false owing to mistake of fact or d. offence reported is found to be non-cognizable or e. matter fit for a civil suit. III. ORDER OR CANCELLATION WHEN TO BE PASSED AND BY WHOM No Magistrate of the 2nd and 3rd Class is competent to make such an order, but any Magistrate of the 1st class may do so. Such an order should only be made at the time of dealing with the Police Reports. No application from the Police for a direction of this Character should be entertained if made otherwise than in the final report submitted under section 173 of the Code of Criminal Procedure. But the Magistrate of the 1st, 2nd or 3rd class, may, of his own motion, in the course of trying any case reported by the Police as congnizable, pass such an order at any stage of the proceedings, before or at the time of delivering judgment, intimation of the order being given to the police. IV. CANCELLATION OF CASE EXCLUSIVELY TRIABLE BY COURT OF SESSION Only Magistrate, empowered to take cognizance of offence and to try the accused or send him for trial is competent to pass cancellation order, even in respect of a case exclusively triable by Court of Session. Sessions Judge does not enjoy such power. In the case Bashir Ahmad v. Allaqa Magistrate Jaranwala the question arose whether with the various amendments brought about in Cr.P.C. by the Law Reforms Ordinance, 1972, a Magistrate was competent to discharge an accused involved in a murder case or to cancel a case exclusively triable by Sessions Court. The High Court concluded that even in case exclusively triable by a Court of Session a Magistrate's powers to discharge an accused or to cancel a case remained unaffected. In the case of Mehdi Hussain Shah v. Khizar Hayat, Bashir's case (supra) was relied upon. It was reiterated that "amendment introduced by Law Reforms Ordinance, 1972 had not affected the powers of the Magistrate under section 173(3) to cancel a case triable by Court of Session. In Syed Hamid Muqeem Bokhari v. State the contention that the Magistrate had no jurisdiction to pass cancellation order because the case was exclusively triable by the Sessions Judge was repelled and it was held that the Magistrate was not merely a post office and could pass such order in cases which he had to send up to the Court of Session for holding trial. Similarly in Awal Khan v. Supdt. of Police it was affirmed that the Magistrate has full authority and jurisdiction to agree with the police report recommending cancellation of a case exclusively triable by Sessions Court. In the case of Soofi Abdul Qadir v. State an SDM, who was an Executive Magistrate and after the separation of judiciary from the executive had been authorized to try only such offences as fell in Chapters VIII, X, XIII and XIV, P.P.C., concurred with the Police Report recommending cancellation of the case involving offences triable by Court of Session and disposed of the FIR as cancelled case. In this background it was held that since the Magistrate was not vested with the Jurisdiction to take cognizance of the offences triable by Court of Session, he while cancelling the FIR on police report had acted without jurisdiction. The order passed by him being coram non judice was accordingly quashed. It was further observed that, "There can be no cavil with the authority of the investigating officer to dispose of a first information report as cancelled class when he arrives at the conclusion that the same is false, founded on a mistake of fact or law, or a dispute of civil nature; but the order of cancellation of FIR must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send the matter for trial to a superior court". According to the facts of the case of Sakhawat Ali v. State the petitioner, a Police Officer lodged an FIR against the accused. After submission of challan, the Area Magistrate took cognizance of the offence as well as of the case and commenced the trial. Meanwhile, the mother of the accused submitted an application against the petitioner to the higher police authorities maintaining that the petitioner had falsely implicated her son. The allegations were found correct, resultantly the petitioner was awarded punishment of reduction in rank. A cancellation report was also submitted before the Area Magistrate with which, however, he did not agree. Subsequently the mother of the accused submitted an application to the Sessions Judge who ordered the cancellation of FIR. The High Court set aside the order holding that the power of cancellation is available only to a Magistrate and not to a Sessions Judge. It was further observed that cancellation of an FIR is not permissible after taking of cognizance of the offence and of the case by the Trial Court. As per facts of the case of Akhtar Ali Khan v. State, the cancellation report submitted to the Magistrate was sent by him to the Sessions Judge, for the reason that the case was exclusively triable by the Sessions Court. The Sessions Judge agreed with the report. The cancellation order passed by the Sessions Judge was set aside by the High Court, holding that it was the exclusive authority of the Judicial Magistrate to pass order under section 173(3). Section 173 does not provide for sending the report under section 173 to the Sessions Judge. Although provision of section 190, Cr.P.C. provides for sending the case to Sessions Court where the offences are exclusively triable by that court but the report under section 173 that the case is found false and unsustainable does not come within its purview .". "The provision requires the sending of the case to the Court of Session for trial alone and that too after the Magistrate takes cognizance under subsection (1) of an offence triable exclusively by Court of Session. These provisions do not indicate any role of the Sessions Judge, therefore, the order passed by him was without jurisdiction and Coram non Judice......". It was further observed that "the order of the Judicial Magistrate indicates that he sent the report to the Sessions Judge keeping in view the pronouncement in the case Sufi Abdul Qadir (supra). Perusal of that judgment shows that the Magistrate failed to conceive the judgment in its true perspective. The judgment made it clear that the investigation officer has to submit the report under section 173, Cr.P.C. to the Magistrate competent to take the cognizance of the offence and to try the case or to send it for trial to the superior court. That after the separation of Judiciary from the Executive, SDM being an executive Magistrate was not vested with the jurisdiction to take cognizance of the offence triable by Sessions Court and send the case for trial. Therefore, the order passed by him in respect of the offence triable by the Court of Session was without jurisdiction. There was no room for confusion about competence of Judicial Magistrate concerned for taking cognizance of offences and passing order on the report under section 173, Cr.P.C". CONTRA In the case of Rana Muhammad Farooq v. Aftab Hussain, the police after investigation submitted report before the concerned Magistrate for disposal of case under "Cancel' case. After hearing the parties, the concerned Magistrate dissented with the report of Investigation Officer and directed him to submit challan under section 173, Cr.P.C. The order was challenged in High Court. Relying on Soofi Abdul Qadir's case (Supra) it was held that, as the case was ordinarily triable by Sessions Court, the Magistrate rightly refused to cancel the registered case as he was not supposed to take cognizance of the matter. In Rasool Bakhsh Sheikh v. State, after investigation, report under section 173, Cr.P.C. was submitted by the police requesting 'C' class i.e. case being neither true nor maliciously false but non-cognizable. On this the Judicial Magistrate wrote 'allowed'. Subsequently, on the directions of the High Court, the Judicial Magistrate passed a detailed order allowing the application. The High Court mainly relying on Soofi Abdul Qadir's case held that the said Magistrate could not order cancellation of an FIR which is in respect of offences triable by a Court of Session. In re Yasir Khan v. Imtiaz, it has been observed that "in case the police and even the referring Magistrate have opined for the cancellation of case, the sessions, after taking cognizance of the case under section 193, Cr.P.C. would have authority to carry out another inquiry without recording of evidence, by reviewing the evidence collected by the police and pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case. In the case of Ibrahim Khan v. State an FIR was registered under section 302/34, P.P.C. On conclusion of investigation the police submitted charge sheet against the accused which was disposed of by the Magistrate in 'C' class. It was held that "..in the changed circumstances and in view of amendment under section 190, Cr.P.C. the Magistrate cannot determine the nature of offence as to whether or not the case is one triable exclusively by the Court of Session, the Magistrate was not competent to dispose of a Sessions case, while cancelling the FIR or Police report, held virtually acted without jurisdiction. The learned Magistrate may draw the inference and conclusion and then transmit the same to the Sessions Court as it was for that competent Court to decide whether cognizance is to be taken or not, and made an administrative determination, without going in further detail as to the merits and demerits of the case." V. NATURE OF CANCELLATION ORDER In the famous case of Bahadur v. State (supra) leave to appeal was granted to examine whether a Magistrate while cancelling a criminal case acts as a court. The Police after investigation of the case submitted a report showing that no case was made out against the accused and sought cancellation of the case. The Illaqa Magistrate through a detailed order agreed with the police report. On the revision petition filed by the complainant High Court held that the Magistrate in cancelling a case acts judicially as a court and for that reason the order was revisable. The order of the Magistrate was set aside and the case was remitted to him to re-examine the question of guilt of the accused. The Supreme Court while deciding the appeal observed that the specific question of law under consideration is not free from controversy. That in a number of cases it was held that cancellation of case is a judicial act of the court. According to the other view a Magistrate while cancelling a case does not act as a court nor such an order is revisable. List of cases representing both the views is mentioned at page 65 of the judgment. It was in this backgroud that the following observations have been made in the judgment: (a) CHARACTERISTICS OF JUDICIAL FUNCTIONS The primary characteristics of 'pure' judicial function, by whomsoever exercised, are:-- * The power to hear and determine a controversy. * The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute. (b) CHARACTERISTICS OF ADMINISTRATIVE FUNCTIONS Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services. (c) DUTIES OF MAGISTRATE UNDER CR.P.C. Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because "judges often administer and administrators often Judge". (d) CANCELLATION OF CASE----DOES NOT FUNCTION AS A CRIMINAL COURT "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state power" * there is no lis before him, * there is no duty to hear the parties, * there is no decision given, * no finality or irrevocability attaching to the order. (e) REMEDY FOR PARTY - FILING OF COMPLAINT The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C." he does not function as a Criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C." CONTRA In the case of Bakht Baidar Ali Shah v. The State it has been observed that "the term, 'Magistrate' has been defined under clause (ma) of subsection (1) of section 4 of Cr.P.C. inserted vide Ordinance XVII of 2001 with effect from 14-8-2001. It means a Judicial Magistrate and includes a Special Judicial Magistrate appointed under sections 12 and 14 of the Code. The insertion of the above definition was made in the process of separation of Judiciary from the Executive in terms of Article 175(3) of the Constitution. Before separation of the judiciary from the executive, Magistrates used to try criminal cases as part of the executive. In that arrangement an order passed by an Executive Magistrate before taking cognizance under section 190, Cr.P.C. was considered as administrative and not a judicial order not revisable under sections 435 and 439.It was so observed in the case of Bahadur and another v. The State and another (PLD 1985 SC 62). However, consequent opon the separation of Judiciary from the Executive and in view of the definition 'Magistrate' as quoted above, the situation now has changed. In the changed state of affairs with effect from 14-8-2001, an order passed by a Judicial Magistrate is to be considered a judicial act and thus revisable under sections 435 and 439, Cr.P.C". VI. NO CANCELLATION OF CASE AFTER TAKING OF COGNIZANCE Cancellation of the case under section 173, Cr.P.C. is not permissible after the cognizance has been taken but it could have been done before that stage. When a Court takes cognizance of an offence on receipt of incomplete or complete challan the prosecution is left with two courses only. One to produce evidence in court and allow the trial judge to decide the case on merits according to law; and two to seek withdrawal of the case under section 494, Cr.P.C. A Magistrate once having taken cognizance of the matter and then having sent up the case to the Court of Session, had no business either in law or in propriety to then discharge the accused persons (or for that matter to cancel the case). Such an action on the part of the Magistrate amounts to pre-empting the exercise of jurisdiction by a Superior Court i.e. the Court of Session. The conduct of the Magistrate, besides having highly improper is even contemptuous. VII. TAKING OF COGNIZANCE (i) Connotation: The word "Cognizance" is a term of art. It implies application of judicial mind for the purpose of finding out whether the offence has been committed or not . The word "cognizance" has not been defined in Cr.P.C. Cognizance is application of mind by the Court on the facts and circumstances of the case. A court taking cognizance of offence has to consider: (i) Whether offence is committed in its territorial jurisdiction.? (ii) Who are persons responsible for the commission of offence? (iii) Whether in court's opinion sufficient grounds are existing for proceeding with the trial? Taking cognizance does not involve any formal action or indeed actions of any kind. Before it can be said that any Magistrate has taken cognizance of any offence under section 190 he must have done so for the purpose of proceeding in a particular way. Cognizance is a word of indefinite import and perhaps not always used exactly in the same sense. It is incapable of precise and allusive definition as may cover all the possible context and situations in which this term can be used. The term taking cognizance is co-related to the matter or case in hand. Generally speaking it is matter of fact depending upon the nature of the proceeding. An accused may be produced before a Magistrate under section 167, Cr.P.C. for obtaining remand. He is taking cognizance of the matter or the case for the purpose of allowing remand or otherwise, but not for taking cognizance of the matter or case for the purpose of commencing or holding a trial. An application may be made before a Magistrate for the superdari of the case property pending the disposal of the case. The Magistrate will be taking cognizance of the application for the purpose of dealing with superdari and yet not taking cognizance of the case for the purpose of trial. Taking cognizance of a case by a court is not synonymous with the commencement of trial which takes place on framing of charge against the accused. (ii) Occurrence of Cognizance It would generally be a question of fact whether at a particular stage a Magistrate has taken cognizance of the case, when a police challan has been presented before him. The police reported by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to start the proceedings. Cognizance occurs as soon as a Magistrate as such applies his mind to the suspected circumstances of an offence. (iii) Taking of Cognizance a Judicial Function Taking of cognizance of offence under section 190(1), Cr.P.C. and issue of process under section 204, Cr.P.C. are judicial functions and require a judicial approach. VIII. NO RE-INVESTIGATION AFTER CANCELLATION OF CASE In a situation where the order of the Magistrate concurring with the recommendation of the police supervenes, the authority to re-investigate does not exist because there is no cognizable case to be investigated. If on the report and the material already collected a different view is formed by the same or succeeding officer of the police of appropriate grade so as to prompt him to require reconsideration of the earlier recommendation including the order of the Magistrate he should through the same channel approach the Magistrate and have his concurrence to the recall of the order cancelling the case as non-cognizable or no case at all. That being an administrative order can certainly be recalled in a bona fide manner and for sufficient reasons. The police has the option of applying again to the Magistrate for recalling the order of cancellation which the Magistrate could have, the order being administrative in character, but unless they obtain such an order from the Magistrate the investigation or the subsequent challan in the Court has no sanction of law behind it. The police may have additional information with regard to the commission of offence but they cannot proceed unless they go back to the Magistrate recalling the order of cancellation. Where the whole case is cancelled the principal that the police shall not reopen the case for fresh investigation, without formally calling for the revocation of the Magistrate's order applies. IX. DIFFERENCE BETWEEN CANCELLATION OF CASE AND DISCHARGE OF ACCUSED Terms "discharge" and "cancellation" are not synonymous and cannot be amalgamated because they have different connotations. Where the case is cancelled by a competent Court, the FIR ceases to exist, but where the accused is discharged the FIR remains intact and the discharge order relates only to that particular accused. If the case was filed being untraceable the FIR remains in field and the matter alive. Apparently, there seems to be some misunderstanding regarding the cancellation of the case against the accused and the discharge of an accused from the case. To resolve this confusion, the two aspects of the case are to be considered separately because there is a nice distinction between the interpretation of the two. Cancellation of the case would mean the cancellation of the FIR, while in the case of discharge of the accused, the FIR remains intact. To further elaborate this proposition, one can say that where a sole accused or all accused of a case named in the FIR are discharged from their bail bonds and the case against them is cancelled by the Magistrate on report of the police, the same will amount to the cancellation of the FIR and there would be no lis pending against the accused thus discharged, but where amongst others, some of the accused are got discharged from the Magistrate due to non-availability of the evidence, or due to some other genuine reasons to be specifically mentioned in the discharge report, in such eventuality, the FIR remains intact and further investigation could be made to collect the evidence against all the accused or some of them so as to trace out the real culprits. If the case is cancelled by the Magistrate on receipt of the report by the police, then re-investigation cannot be made without permission of the Magistrate. In case of discharge of the accused, then, of course, the investigating agency even without getting permission from the Magistrate can re-investigate the matter. X POWER OF HIGH COURT TO INVOKE JURISDICTION UNDER SECTION 561-A, Cr.P.C. In the case of Bahadar v. State the Supreme Court held that as the Magistrate while concurring with the Police Report submitted under section 173, Cr.P.C. and cancelling a criminal case does not function as a criminal court, the order of cancellation of a criminal case is not amenable to revisional jurisdiction of High Court under sections 435 to 439, Cr.P.C. However, In Arif Ali Khan v. State, the Supreme Court held that though sections 435 to 439, Cr.P.C. cannot be pressed into service by High Court in a case in which a Magistrate concurs with the report of an investigating officer under section 173, Cr.P.C., but the High Court can invoke aid of section 561-A, Cr.P.C. It was observed that where the court reaches a positive conclusion in a case that a particular order passed by the subordinate court amounted to abuse of process of court, it does not mean that it would be powerless to rectify the injustice. The High Court, therefore, would be justified in setting aside the order of the Magistrate under section 561-A, Cr.P.C. The above view was reiterated by the Supreme Court in Muhammad Sharif v. State and followed in the case of Hassan Ahmad v. Mst. Irshad Bibi. XI. ORDER HELD ILLEGAL BEING "NOT A SPEAKING ORDER" (i) In the case of Mushtaq Raj v. Magistrate 1st Class, the Magistrate passed the following order:- "Police Report perused. As requested by Police case is cancelled." The High Court in exercise of its powers under section 561-A, Cr.P.C. declared the order to be without lawful authority and of no legal effect, observing that the Magistrate while discharging his administrative duties has to act fairly, justly and honestly. The Magistrate, however, acted arbitrarily and in a mechanical manner; that he did not apply his conscious mind to the facts of case and did not give any reason in support of his order. While concurring with the investigation conducted by Police it appears that he has not even examined the FIR and the police file as is apparent from the impugned order. (ii) Similarly in the case of Nazir Ahmad v. Illaqa Magistrate the Magistrate passed an order to the effect: "Cancellation Report by Police agreed to file be consigned." (iii) In another case titled Muhammad Askar v. Arshad the Magistrate cancelled the FIR passing a similar following order: "Cancelled as per request of the local Police." The orders in both the aforementioned cases were set aside by the respective High Courts on almost similar grounds as mentioned in the case of Mushtaq Raj (supra). XI. GUIDELINES FOR MAGISTRATES "..........While exercising power under section 173(3), Cr.P.C., the learned Magistrates are not to act as pawns in the hands of the police and pass mechanical orders without application of their conscious mind to the facts and the material as placed before them. The learned Magistrates must be made to realize that the power to cancel a police case is of wide amplitude which has the effect of bringing to a halt the criminal prosecution which otherwise would entail a detailed process. Such a power, therefore, by its very nature, cannot be designed to be exercised on mere ipse dixit of the police. Otherwise, the very purpose for conferring this power on the Magistrates on responsible level in supervisory capacity would stand defeated". Since an order of cancellation of a criminal case, is an administrative order, there is no obligation on the Magistrate to hear the parties or their learned counsel. However, if he so desires, he may give them a hearing for clarification of any question of law or fact involved in the case. The three pre-conditions to act fairly, justly and honestly cast a duty on the Magistrate to apply his mind to the material placed before him and after duly considering the pros and cons of the matter, pass a speaking and well-reasoned order. He is not expected to put his signatures on the dotted line, or blindly ditto the report of the police, signifying his lack of application of mind or giving the impression of being led by the nose by them. However, he is not bound to hear the parties. A right of hearing is not allowed to the parties before an order of cancellation is passed by the Magistrate on the administrative side. Magistrate, while cancelling FIR and discharging the accused, does not function as a Court and the order passed by him cannot be treated as a judicial order---it is, however expected that the Magistrate should pass a speaking order indicating as to how and on the basis of what material he finds himself in agreement with the police report. Any order passed in a mechanical manner, without indicating independent application of mind, is deprecated.