HARIHAR CHAITANYA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) On the fact of a written report made at police station Mohammadi, district Lakhimpur-Kheri, on 6-10-1988 by Sri Satish Kumar Bajpai against Sri Harihar Chaitanya (applicant) and one Devesh Kumar Trivedi, a crime was registered under Ss.336 and 506 of the Penal Code. The applicant was arrested and produced on 7-10-1989 before the Judicial Magistrate having jurisdiction to try the case. The Investigating Officer prayed for detention of the applicant for a period of 14 days in judicial custody. The Magistrate perused the contents of the First-Information-Report and formed an opinion that provisions of S.307 of the Indian Penal Code were, prima facie, attracted. Therefore, by the impugned order dated 7-10-1988, be directed for the preparation of jail warrant for detention of the applicant under S.307 of the Indian Penal Code.

(2.) This petition under S.482 of the Code of Criminal Procedure (in short, Code) has been filed for quashing the said order.

(3.) I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. From the facts given above, it is clear that while exercising powers under S.167 of the Code, the Magistrate disagreed with the opinion formed by the Investigating Officer in regard to the applicability of the penal Section to the facts disclosed in the complaint. Thus, the short question that emerges for determination is as to whether or not the Magistrate possesses such powers. The learned counsel for the applicant contended that because it amounts to shifting the proceedings in investigation, the Magistrate had no jurisdiction to pass the impugned order.