2018 PLP 1173 (MLD)

SALAHUDDIN PANHWAR, J.

Precisely relevant facts are that by order dated 25.08.2014, learned Civil Judge and Judicial Magistrate-X, Hyderabad while examining the report under section 173, Cr.P.C. took cognizance as per sections in the report as well under section 302, P.P.C. and forwarded the case to the learned District and Sessions Judge. Per counsel for respondents, learned trial Court has framed the charge under section 302, P.P.C. which order has not been assailed.

2. It needs no reiteration that opinion of the police (investigation agency) is not of binding effect upon the Courts therefore, the Magistrate can competently agree or disagree with opinion of the police (investigation agency) while exercising administrative jurisdiction on a report submitted before him within meaning of sections 170/173, Cr.P.C.

3. The moment the Magistrate sends the case to Court of Session with meaning of Section 190(2) of the Code he becomes functus Officio and then it shall be the Court of Session either to take cognizance (Section 193, Cr.P.C.) onto the matter or otherwise. However there can be no denial to the legal position that once a charge is framed within meaning of Section 242 or section 265-D of the Code of Criminal Procedure, the value of order, passed on a police report, shall stand superseded wherein the Courts, after examining all material, find the case to be tried further. To make things clear a reference to section 265-D is made which reads as:-- '265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.'

4. From above, it is quite obvious that the framing of charge shall require the Court (of Sessions) only after perusing all material after providing opportunity to accused persons, therefore, is a judicial order where!): the Court commenced the trial. It is also well settled legal position that framing of Charge is meant commencement of trial. An act of framing charge is not an administrative order but is a judicial while order passed by a Magistrate on a police report is administrative in nature. The judicial order shall prevail order an administrative. In such eventuality, it shall result in making the petition (application under section 561-A, Cr.P.C.), challenging the order of Magistrate, taking cognizance on police report, infructuous. If the aggrieved (accused) continues claiming the innocence he may competently resort to course provided by Section 265-K, Cr.P.C. for the case. having groundless charge.

5. Since, in the instant matter, it is a matter of record that the learned Sessions Court (trial Court) has framed the charge against the accused persons (petitioners) hence the instant petition, sticking to legality or otherwise of order passed by Magistrate, has become infructuous. Any comments on merits or demerits of order of Magistrate may prejudice the case of prosecution or defence hence needs not be discussed which otherwise should always be avoided where a matter has become infructuous. Accordingly, instant Criminal Miscellaneous Application is dismissed, being infructuous.

6. While parting office shall examine all miscellaneous applications/petitions wherein order passed on 173, Cr.P.C. is impugned and no interim order passed by this Court is existing; report shall seek comments from in trial Court, whether charge has been framed by trial Court or otherwise. In case charge is framed then all such matters shall be fixed together with separate cause list for orders on maintainability. This exercise shall be completed within fifteen days. WA/N-40/Sindh Petition dismissed.