DAULAT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application under Section 482, Criminal P. C. 1973, against the order dated April 28, 1976 by the learned Judicial Magistrate No. 1, Jodhpur in Criminal Misc. Case No. 35 of 1975.

(2.) THE facts of the case, in brief, which are relevant for the disposal of this application, are that a case under Section 9 of the Indian Opium Act was registered against the accused-applicant and others. During investigation the sample of the opium was sent to the Director, Forensic Science Laboratory, Jaipur. In the report dated October 4, 1975, the Director reported that on chemical examination the sample contained in the packet was not found to be of opium. The investigating agency, therefore, submitted a final report under Section 173, Criminal P. C. 1973. The proceedings before the learned Magistrate dated April 8, 1976 reveal that the final report under Section 173, Criminal P. C. 1973 was presented and the case was posted for orders for April 22, 1976. On April 22, 1976, the learned Magistrate ordered that he would like to see the seized material. The A. P. P. was directed to produce the seized material on April 28, 1976. On April 28, 1976, it was ordered that as the court time is over, the sample from the sealed packet may be taken and be sent for re-examination. It is against this order that the present application under Section 482, Criminal P. C. has been filed.

(3.) ON behalf of the accused-applicant, it was contended that the learned Magistrate acted without jurisdiction in passing the order contained in the proceedings dated April 28, 1976. It was also contended that the learned Magistrate could not collect evidence for the prosecution if any such evidence was wanting as it would mean plugging the lacunae in the prosecution evidence. It was also contended that once a final report under Section 173, Criminal P. C. has been filed, only two courses were open to the learned Magistrate, viz. (1) that he could ignore the final report under Section 173, Criminal P. C. and could have taken cognizance of the offence after examining the evidence on record, collected by the investigating agency; or (2) he could have either allowed the prosecution to be dropped in pursuance of the final report submitted under Section 173, Criminal P. C. or could have proceeded as envisaged under Section 159. Criminal P. C It was contended that the learned Magistrate did not adopt any of the permissible procedure, as indicated, and acted in an arbitrary and capricious manner. It was also contended that the order passed by the learned Magistrate is neither a speaking order nor a reasoned order in the absence of which no appellate or revisional Court could infer why such an extraordinary step was taken by the learned Magistrate.