Cognizance of offence by Magistrate

First Information Report reflected that the applicant had nominated in all 31 persons with their names, parentage as well as respective weapons they were carrying which did not appeal to a prudent mind that one could recognize such a huge number of persons with the details so furnished

Both Investigating Officers had recorded statements of complainant and witnesses and contradictions existed

Independent witnesses had stated in their statements that no such incident had occurred and there was a dispute between the parties over forest land

Second Investigating Officer had also obtained CDR-location of an eye-witness and an accused which showed that on the particular date and time they were available in some area at the distance of 20 to 30 kilometers

Application was dismissed, in circumstances.

Even in cases triable exclusively by a Court of Sessions, the Magistrate's power under the Code of Criminal Procedure, 1898 remains intact till such time the case is formally sent by him to the Court of Sessions for trial.

Tendency of Magistrates to mention in the Police Report "accepted" deprecated by High Court.

Detailed and deeper appreciation is to be made at the stage after recording the evidence.

Magistrate can take cognizance of offence even if the report submitted by the Investigating Officer is negative and narrates that accusation is baseless and no case is made out against the accused.

Where prosecution witnesses have fully implicated the accused in their statements recorded under S. 161, Cr.P.C., Magistrate cannot discharge the accused on the basis of police opinion.

Serious allegations had been levelled against the respondents, who by dint of weapons entered into the house of the petitioner; issued murderous threats; violated the principle of "chadar and char deewari"; made aerial firing; took away 25 maunds wheat and other household articles with them

Allegations of petitioner also found support from the statements of the prosecution witnesses recorded under S. 161, Cr.P.C.

Neither Investigating Officer nor the Magistrate had appreciated the evidence

Magistrate had passed impugned order by wrongly giving weight to the statements of defence witnesses and had accepted the summary under 'C' class blindly and without assigning any cogent/valid reason, which could not be approved

Ipse dixit of Investigating Officer could not be accepted to exonerate the accused from the commission of the offence

No reasonable ground or justification was available to disbelieve the evidence of the prosecution witnesses at initial stage of the case

Constitutional petition was allowed and the impugned order was set aside.

Complainant assailed order of Sessions Judge whereby he, at the time of handling bail application, had concluded that certain sections mentioned in the FIR were not relevant for framing charge and had directed the Magistrate to consider whether cognizance was required or not

Validity

Sessions Judge was not required to give any opinion regarding framing of charge at the time of deciding bail application

Cognizance was the sole responsibility of the Magistrate, who at the time of taking cognizance had to consider the material placed by the police before him in the shape of final report

Magistrate could consult the police file but no other material beyond that

High Court directed the Magistrate to act strictly in accordance with law at the time of dealing with final report submitted before him without considering any extraneous material and being influenced from the observation of Sessions Judge

Revision petition was disposed of accordingly.

Magistrate could take cognizance of offence even if report submitted by Investigating Officer was that accusation was baseless and no case was made out against the accused.

Vitality of role of Investigating Officer cannot be denied because it is the very first person, who as per law is authorized to dig out the truth without any limitations

Investigating Officer is not bound to base his conclusion on version of informant or defence but on actual facts discovered during the course of investigation

Such conclusion shall be submitted in the shape of prescribed form, as required under S. 173, Cr.P.C.

Police report must include all details as directed in S. 173, Cr.P.C.

Section 173, Cr.P.C. nowhere describes as to how the Magistrate shall deal with such report, it, however, empowers the Magistrate to agree or disagree with the act of investigating officer in releasing an accused during investigation

Word 'may' as used in S. 173, Cr.P.C. vests competence in Magistrate to agree or disagree; this being the reason that an opinion of investigating officer is never binding on the Magistrate

Magistrate who takes cognizance of any offence under S.190, Cr.P.C. is required to apply his mind in order to ascertain as to whether the case is one which he is required to send for trial

Act of taking cognizance has nothing to do with guilt or innocence of the accused, it only shows that the Magistrate has found the case worth trying

Magistrate was not to examine the matter in deep but only prima facie view of the commission of offence

Once Magistrate takes cognizance of the offence exclusively triable by the Court of Session, he has to send the case there.

Magistrate can take cognizance of an offence: (i) upon receiving a complaint of facts, which constitute such offence; (ii) upon a report in writing of such facts made by any police officer; and (iii) upon information received from any person other than a police officer or upon his own knowledge or suspicion.

Order of taking cognizance could only be set aside if it was shown that order was prima facie non-speaking and contrary to law.

Complainant had reported the incident to the police in which his brother had received serious injuries allegedly caused by the officials of the SEPCO

Happening of incident was not denied but not as narrated by the complainant in the FIR

Record showed that injured had himself put his hand on the electricity line in which 11,000 KV current was passing

Allegation of complainant was not conceivable that proposed accused had persuaded the injured, who was a layman, to work on high powered line

Complainant, during investigation, had not produced any instrument necessary for working on high powered electricity lines or any certification of his competence

Circumstances established that injured had himself tried to interfere with the high-powered electricity lines with some ulterior motives

Magistrate had passed the order after proper scrutiny of the available material

Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Nothing in S. 190, Cr.P.C. prevented a Magistrate from taking cognizance of case under class "B" in spite of the police report.

Where Magistrate had observed applicability of some provision of law, which was neither triable by him nor by the Court of Session, rather it was exclusively triable by the Special Judge, Anti-Terrorism Court, he may return the F.I.R. and final report under S. 173, Cr.P.C. to the prosecution for its onward submission before the court concerned.

Trial Court disagreeing with the police report, directed investigating officer to submit challan under S. 190, Cr.P.C. as in its opinion there was material on record to connect accused persons with the crime

Legality

When a police report under S.173, Cr.P.C. was submitted to the Magistrate, he was required to either agree with the police report for cancellation or where he did not agree with such report, he could order further investigation of the case, and in case, no further investigation was required to be conducted, the Magistrate should take cognizance of the offence in terms of S. 190, Cr.P.C.

Trial Court, in the present case, had rightly taken cognizance of the case as according to it there was ample material available with the prosecution to substantiate the charge

Application was dismissed in circumstances.

Recommendation of investigation officer disposing of F.I.R. in A, B or C class was not binding upon the court and the court could take cognizance under S.190, Cr.P.C, if it deemed fit and proper on the basis of incriminating material available on record, however, it was incumbent upon the court to advert to the report and examine it and to take cognizance in the matter, as envisaged under S.190, Cr.P.C

Court may or may not agree with the police report and notwithstanding the recommendations of the investigation officer regarding cancellation of the case could decline to cancel the case and proceed to take cognizance as provided under S.190, Cr.P.C and summon the accused to face trial

Magistrate after seeing the final report, should act fairly, justly and honestly by applying his mind to the material placed before him and he should pass a speaking and well-reasoned order after duly considering pros and cons of the matter

Magistrate was not expected to put his signatures on dotted line, or blindly ditto the report of the police which could signify lack of application of his mind or give impression of being led by the police.