BABASAHEB DIWANRAO BARASE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By consent, admitted and heard finally. The applicant is the First Informant in C.R. No. 1-95/2010, which was registered by Mukundwadi Police Station, Aurangabad in respect of offences punishable under section 307 of the Indian Penal Code (IPC), section 452 of IPC, section 323 of IPC, section 506 of IPC etc., read with section 149 of IPC and section 107 of IPC. After investigation, the police filed a charge-sheet in respect of offences punishable under section 324 of IPC, section 452 of IPC, section 323 of IPC, section 504 of IPC etc., read with section 149 of IPC and section 107 of IPC. Thus, instead of filing a charge-sheet in respect of an offence punishable under section 307 of IPC, as was initially registered, after investigation, the police concluded the offence to be one punishable under section 324 of IPC and accordingly mentioned that offence in the charge-sheet. The First Informant made an application before the Magistrate, contending that actually, the case related to the offence punishable under section 307 of IPC, and that, the police be directed to investigate further into the matter, as contemplated under section 173(8) of the Code of Criminal Procedure (hereinafter referred to as "the Code"). On this, the Magistrate ordered further investigation. After investigation, the police once again reported, by filing a supplementary charge-sheet, that the offence disclosed was one punishable under section 324 of IPC only and not under section 307 of IPC. The applicant then once again made an application to the Magistrate stating that the conclusion arrived at by the Investigating Agency in that regard was incorrect, and that, actually the case related to the offence punishable under section 307 of IPC; and that, therefore, it should be committed to the Court of Session. The learned Magistrate, by a detailed order passed on 16th February, 2013 rejected the First Informant's prayer for committing the case to the Court of Session.

(2.) One of the contentions raised by Mr. Sapkal, the learned counsel for the applicant' is that the opinion that was formed by the Investigating Agency was merely based on the opinion expressed by the Law Officer attached to the Police Department. According to him, this was not proper and the Investigating Officer was required to form his own opinion, as to what offence/offences was/were disclosed from the facts revealed during the investigation. It is also contended by Mr. Sapkal that the Magistrate's order is not proper, in as much as, he has discussed the supposed merits of the matter, as if, he was pronouncing a judgment. Mr. Sapkal has drawn my attention to the observations made in para 11 of the order dated 16.02.2013, wherein there is much discussion as to the supposed intention of the accused persons, by referring to the material in the charge-sheet.

(3.) Mr. Joydeep Chatterji, the learned counsel for the accused persons submitted that the Magistrate's view was proper and legal. According to him, since the First Informant had raised the issue, the Magistrate was necessarily required to deal with the same and therefore, the observations made by the Magistrate about the nature of offence disclosed are proper and legal.