STATE Vs. MUKESH

JUDGEMENT

(1.) BY this petition the Government of NCT of Delhi has assailed the order passed by the Metropolitan Magistrate Delhi dated 29. 6. 2002, whereby following observations were made and directions were given to the Commissioner of Police, Delhi as well as the Director of prosecution to review their procedure for checking and scrutiny of the charge-sheet before a report under Section 173 Cr. P. C is filed in the court after completing the investigation: -

(2.) IT has been submitted that the aforessaid observations made by the Magistrate and directions contained in the order passed are not in accordance with the provisions contained in Code of Criminal procedure or any other law dealing with the powers of the Magistrate in this regard and thus, the said order is illegal. It is also submitted that the order is also not in accordance with the legal prnouncements of the Apex Court and this Court from time to time holding that there is no such power vested in the Metropolitan Magistrate/acmm or the CMM to pass any such order or to issue such directions as no such procedure is contemplated in the Code.

(3.) THE occasion to pass the impugned order came during the pendency of investigation of FIR bearing No. 619/2000 registered at police Station Lajpat Nagar under Section 379/482/411/34 against the respondent/mukesh. He was arrested in that case and was remanded to judicial custody. He was not granted bail within the period of sixty days. Since the respondent could not have been detained in the judicial Custody beyond that period without filing of Charge Sheet withn the time prescribed under Section 167 of the Code of Criminal procedure (hereinafter referred to as Code), the respondent who had been approaching the Metropolitan Magistrate for his release on bail was released on Bail on the 60th day due to failure of the prosecution to file the Charge Sheet by that time. However on account of the stand of the Investigating officer that he could not file the report despite the completion of investigation within the prescribed period due the directions of the Superior Officer who wanted consultation with the legal advisor of the prosecution the magistrate passed the impugned order by taking suo motto cognizance of the delay in submitting the charge-sheet which occurred on account of directions given to the investigating Officer by the senior officers to obtain the advice of the public prosecutor as if the Court was performing functions of a Writ court. It has been held by the Court that such directions could not have been given and therefore, observed that the procedure adopted by the prosecution regarding obtaining advice from the Director of prosecution was illegal and passed the impugned order dated 28. 6. 2002.