LUMBARAM Vs. STATE

JUDGEMENT

(1.) THIS reference comes on the report of the learned Sessions Judge, Jodhpur, dated the 16th of August 1955.

(2.) THE facts giving rise to it are that four persons namely Lumbaram, Kheraj, Pitha and Ghewaria were arrested by the Police on 2nd of May 1955 because they were suspected of committing the murder of one Nawalaram Jat on the previous day. After investigation, the Police challanged three of them. Against the fourth, namely Lumbaram, it was reported that the evidence against him was not sufficient for his prosecution and therefore, he should be discharged. The negative report against Lumbaram was rejected by the First Class Magistrate, Jodhpur on the ground that no evidence was recorded till then in the court. He ordered that the accused would stand his trial along with others. Against this order, Lumbaram filed an application in revision in the court of Sessions Judge, Jodhpur. The learned Sessions Judge has expressed a doubt if the procedure adopted by the Magistrate is correct. He has requested this Court to lay down the procedure to be followed in such cases.

(3.) LEARNED Counsel for the petitioner has urged that the Magistrate should have either accepted the Police report or rejected it taut he should not have taken cognizance of the offence, It is contended that the Magistrate could take cognizance on the Police report only if the Police had challenged the accused and made it clear that the facts found against him constituted an offence. According to learned Counsel, the Magistrate could not take cognizance on a negative report of the Police in any case. In support of his contention he has referred to - 'harbir Singh v. The State' AIR 1952 Pepsu 29 (A); and - 'mt. Ido V. Gainda Singh' AIR 1952 Pepsu 38 (B ).