But the question then arises: what is to be done by the Magistrate on receiving report under Section 173?

State of Gujarat

Vs

Shah Lakhamshi Umarshi And Anr.

Para 1: These Revision Applications raise an interesting question, namely, whether in a case where an Investigating Officer investigating into a cognizable offence has or completion of the investigation submitted a final report as distinguished from charge sheet under section 173 of the Code of Criminal Procedure requesting that “A”, “B” or “C” summary be issued, the Magistrate can direct the Investigating Officer to submit a charge sheet if he disagrees with the recommendations of the police and takes the view that the facts set out in the final report constitute an offence and there is a case for placing the accused on trial. The question is one of some importance since it is likely to arise frequently before Magistrates and that is why the Revision Applications have been referred to a Full Bench by Bakshi and Vakil JJ. Before whom they originally came up for hearing.

But the question then arises: what is to be done by the Magistrate on receiving report under Section 173?

Para 5: Section 190(1)(b) covers the case of a report under Section 173 and we shall, therefore, for the time being be concerned only with that provision. Under Section 190(1)(b) a Magistrate may take cognizance of an offence on a report under Section 173 disclosing facts which constitute such offence. The word “may” imports the exercise of judicial discretion and the Magistrate receiving the report under Section 173 would have to consider the report and decide judicially whether or not to take cognizance of the offence.

It is, therefore, apparent that where the police has submitted a charge sheet under Section 173, the Magistrate is not bound to accept the opinion of the police that there is a case for placing the accused on trial and to take cognizance of an offence as reported by the police. The Magistrate may on considering the charge sheet take the view that the facts disclosed do not in his opinion constitute an offence and the condition for taking cognizance under Section 190(1)(b) therefore, does not exist or that even if the facts disclosed constitute an offence, there is not sufficient evidence to place the accused on trial and in either view he may decline to take cognizance

of the offence whatever be the opinion of the police. As a matter of fact in such a case the Magistrate would be bound not to take cognizance of the offence and if he does, his order being a judicial order would be levisable by the Superior Court.

 

admin

Leave a Reply

Your email address will not be published. Required fields are marked *