BASHIR AHMED and 2 others vs THE STATE

ORDER

SYED ZAKIR HUSSAIN, J.---This application is preferred by the applicants against the order passed by the learned Ist Civil Judge and Judicial Magistrate, Jacobabad, on 10-7-2010, in the matter of charge-sheet submitted before him by the Investigating Officer, in Crime No.77 of 2010, lodged with Police Station Sadar, Jacobabad, for the offences punishable under sections 302, 324, 337-H (2), 148, 149, P.P.C.

2. In the said charge-sheet, the nominated accused, the applicants were shown in Column No. II, on the basis of the evidence of the people of the locality collected by the Investigating Officer, on his own and not at the instance of the complainant, and owing to the evidence of his witnesses etc. The Investigating Officer put the names of the applicants in Column No. II. The learned Magistrate on the application of the complainant examined him and his witnesses who supported prosecution of the applicants. The said evidence supported the case against the applicants to the extent of the matter reported against while the said collected evidence proves the applicants innocent on plea of alibi. The learned Magistrate on the basis- of such taken down evidence of complainant side rejected the opinion of the Investigating Officer and disagreed with the placement of the applicants in Column No. II. He observed that the plea of alibi and evidence collected thereagainst will be open to the defence for being agitated and proved at proper stage of the trial.

3. The learned counsel for the applicants state that the order impugned in this application, is illegal for the reasons that the learned Magistrate had no power to try the case being exclusively triable by Sessions Court, and he was supposed to simply, forward the charge-sheet to the Court of Session; and that the learned Magistrate entertained the application of the complainant party and took down their evidence before taking the cognizance of the case and thereby committed illegality as it amounts to prejudging the matter, whereas under section 173, Cr.P.C., which pertains to the submission of the charge sheet of like nature, right of audience or the procedure which has been followed by the learned Magistrate, is not there. Similarly, the learned counsel for the applicants also stated that the learned Magistrate was not competent to turn down the evidence collected by the Investigating Officer, which was taken on spot as an independent exercise and which favoured the applicants and belied the case of the complainant side, as well.

4. The learned State counsel does not dispute the contention of the learned counsel for the applicants that the learned Magistrate was not to entertain the application of the complainant and takes down his statement and that of his witnesses, and such exercise, therefore, was beyond his authority and jurisdiction and as such cannot be sustained in law.

5. I have heard the learned counsel for the applicants and learned State counsel and examined the record. The impugned order carries directions to the Investigating Officer by the learned Magistrate to file the charge-sheet afresh charge-sheeting the let off accused thereby for prosecution and trial. There is no bar on powers of the Investigating Officer in law, but similarly, the Magistrate is not bound by his opinion and he can have his own view of the case on the basis of material brought to light through the charge-sheet or otherwise and the course of accepting the charge-sheet for its onwards forwarding to the Court of Session where the offence is triable by Sessions Court or to proceed with the case, if he is competent to try the offence, with or without inclusion of the let off or uncharge sheeted persons, if any, in the matter, is very much open to be adopted as a matter of Magisterial functions in terms of section 173, Cr.P.C, read with section 190, Cr.P.C. The Magistrate obviously has no such power under section 173, Cr.P.C. He has also no power to give right of audience to the complainant in a case of police report, for coming to a conclusion whether the same should be accepted or dealt with otherwise. The Magistrate of course, has power to include the let off accused. He may summon them for such inclusion in the case. Simultaneously, he can join any person who appears to be guilty of the offence reported against on the basis of the evidence on record in terms of the aforesaid section (s) of law. The impugned order therefore, is not sustainable and the same is set aside in the above terms, with the result the police report is hereby accepted and the same is forwarded to the Court of Session for further proceedings.