GANESHILAL Vs. STATE

JUDGEMENT

(1.) This is an application in revision by Ganeshilal and two others. Briefly stated the facts are : - - Against the petitioners and 6 others a challan was submitted under sec. 147, 323 I.P.C., in the court of Sub -Divisional Magistrate Pali, who by his order dated 12.1.60 discharged the petitioners under sec. 251 A(2) Cr.P.C., but framed charges against the remaining 6 persons. Against the order of discharge a revision was preferred before the District Magistrate Pali who by his order dated 30.7.60 accepted the revision and sent the case back directing that charges under sec. 147 I.P.C. be framed against the petitioners. When the case came back before the the trial Magistrate an objection was raised on behalf of the petitioners that the order of the learned District Magistrate was wrong as the procedure prescribed under sec. 251A Cr.P.C. did not envisage any inquiry. This objection was overruled by the learned Magistrate. A revision was then taken up against this order dated 10.3.61, to the court of the Sessions Judge Pali. Although the revision was directed against the order of the trial Magistrate dated 10.3.61, but it appears that the order of the District Magistrate dated 30.7.60, was also challenged before him on the ground that sec. 251 A Cr.P.C., did not contemplate any inquiry. The learned Sessions Judge held that it was too late to challenge the order of the District Magistrate. He also repelled the contention that the District Magistrate was not competent to make an order for further inquiry into the case under sec, 436 of the Code of Criminal Procedure.

(2.) The learned counsel for the petitioners urges that the order of the learned District Magistrate is bad in law on two grounds. Firstly no further inquiry into the case could have been ordered and secondly no direction for framing charges against the petitioners could be given under sec. 436 Cr.P.C. On the merits it is conceded that there was sufficient material on record to frame charges against the petitioners.

(3.) It may be mentioned at the outset that under sec. 436 Cr.P.C., an order for further inquiry in the case of any person accused of any offence who has been discharge can only be made. Under this section no direction can be given to frame charges against the accused. All that can be done is to direct the Magistrate to hold further inquiry and then to proceed in accordance with law. If upon inquiry the Magistrate finds that charges should be framed he can do so. If on the other hand he finds it unnecessary to frame charges he can discharge the accused again but no directions can lawfully be given to a Magistrate to frame charges against the accused. It is the function of the Magistrate to decide whether the charges should be framed or not, and his discretion should not be fettered by instructions or directions from any other court. The order of the learned District Magistrate, therefore, is bad in so far as it directs the trial Magistrate to frame charges under sec. 147 Cr. P.C. against the petitioners.