TMI Blog2004 (9) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... rit of mandamus calling upon the Sessions Judge, Palghar to try and dispose of Sessions Case No. 62/ 89 within 3 months from the date of committing the case to Sessions Court. To direct the learned J.M.F.C. Vasai to discharge the four adivasis accused in the Sessions Case No. 303/89 and commit the present Respondent Nos. 2 to 9 to Sessions Court for trial. If it is found just and proper the concerned authorities may be directed to take disciplinary action against the judicial and police officer to avoid the miscarriage of justice in future. Petitioner may be awarded the costs of this petition. To pass any other order which Your Lordship deem fit in the interest of justice. The High Court had originally issued noticed before admission to the Inspector of Police State CID, who filed an affidavit on 10th March, 1998. Appellant's grievance primarily was that the respondent Nos. 2 to 9 herein (who were the respondents before the High Court in the Writ Petition) had allegedly killed his brother and caused grievous injuries to nephew. The first information report in this regard was registered on 29.6.1987 bearing C.R. No. 257 of 1987. The High Court noted that the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the appellant submitted that when there has been total failure of justice on account of laxity of the Investigating Agency there was need for change of the Investigating Agency for further and better investigation. It was also submitted that some of the judicial officers did not act within the four corners of law and did not take note of the observations made by the learned Additional Sessions Judge. It was submitted that when Investigating Agency and judicial officers had not acted rationally and in accordance with law, the High Court should have accepted the prayers made. In response, learned counsel appearing for the respondents submitted that the appellant has unnecessarily prolonged the proceedings and investigating officers and/or the judicial officers were not supposed to act in the manner the appellant desires, they have to act as provided in law. It is also submitted that course available to be adopted in case final report is submitted, has been indicated by this Court in several cases and if the appellant has any grievance the same can be redressed in the manner provided in law and not the way appellant desires, and certainly not in a writ petition. He c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit a charge sheet, when they have sent a report under Section 169of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(l)(c). When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (i) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the Informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code of issue of a notice in that regard. We may add here that the expressions 'charge-sheet' or 'final report' are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the Police filed under Section 170 of the Code, described as a charge-sheet . In case of reports sent under Section 169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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