DINESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) R K. Jain, J. Heard Sri Satyendra Narain Singh, learned counsel for the revisionists and the learned A. G. A.

(2.) IN crime No. 34 of 1997, PS. Paschim Sarira, district Allahabad, accused Dinesh Kumar and Ram Kripal Tiwari were nominated and a case under Sections 323, 324 and 504, I. P. C. was registered. After the accused were apprehended they were produced before the concerned Judi cial Magistrate alongwith relevant papers including the case diary and a prayer for remand of judicial custody for 14 days was made. The learned Magistrate, having gone through the first information report, medical examination report and the case diary, formed an opinion that prima facie a case under Section 307, I. P. C. was made out. Therefore, he passed the impugned order directing that the accused persons are remanded to judicial custody under Sections 307,323,324 and 504, I. P. C.

(3.) IT is well settled that the functions of the Magistrate under Section 167 Cr. P. C. are judicial functions and an order granting remand to police custody or to judicial custody or an order refusing to remand to judicial custody or to police custody is to be passed after applying judicial mind to the facts of the case and material produced before the learned Magistrate. Therefore, in case where in vestigating agency has registered the case minimising the offence and if on perusal of the documents produced before the Magistrate at the time of passing of the order of remand, he is of the opinion that a major offence, prima facie, is made out, he has jurisdiction to pass the order remand ing the accused to judicial custody for a major offence. In case no offence is dis closed from the material produced before the learned Magistrate, he has power to refuse remand.