LexSTATE OF U.P. versus LAXMI BRAHMAN & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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. 537.
STATE OF U.P.
v.
LAXMI BRAHMAN & ANR.
March 11, 1983
(D.A. DESAI AND R.B. MISRA, JJ;]
Code of Criminal Procedure, 1973-S. 167 (2) as it stood'prior to 1978 and
Ss. 170, 207, 209 and 309 (2)-0jfence exclusively triable by Court of Session--
Power of Magistrate to gran{ bail _to_orremamJaccused to ~ustody-Whtn
investigation is n~t co~plete wiihin prescribed limit i.iQgiStr'D~e. ·1has ~oif~ '.~n~~r t
s; 167(2) to gra~t bail to ace.used pro1 ided he applies for it and, is. J!,''/!.are~ !7
furnish_ hail-After subrr.ission
cf p~lice rr port
u~~er. i.~· /~~. ar.d. ~ff:?!~
t~Tnmlttinr . accused to
Ccurt of ~es~fon under S. 209 Magistrate ~as power
uni/er S. 309(2) to remand accused to custody.
Code of Criminal Pro:edure, 197'!-S. 2 (g) and Ss. 190, 207 and 209--
(b
Taking cognizance of iJjfenct: by Magi st rate urder S. 190 Is a fuilicial. frfnction
-Discharge.of stat'utory obligation by Magistrate to fufnish copies of 'documents
to accused under S. 207 read with s: 209 is also judicial function and con'stitutes
'inquiry' within the meaning cf S. 2(g).
The respondents were suspected 6f having committed an Offence pUriishitblC
With dea'th or imprisonment for life under section 302 I.P.C. triable eXctuSively
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by the Court of Session. They surrendered before the MaiistratC on Noveniber
2; 1974 ·-and ~ere taken into custody, The investigating officer failed to S'1bmit
the charge-sheet/police report against them within the period of 60 days contem-
plated by the proviso to sub-s. (2) of S. 167 of the Code of Criminal Procedure,
1973 as it stootl prior to its amendment ill 1978. H6wever. the reSp0n1dents
did i:iot apply to the Magistrate for being released on bail but approach~d \lie
High court under s. 439 Cr. P.C. Acccording to the High Court, the charge-
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sheet aMinst the respondents was submitted on February 5, · 1975. the I11kh
Court directed that the respondents be released on bail pending trial ~y the
Court of Session holding :
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(i) that in a case triable exclusively by the Court of Session afier i.he
charge-sheet has been submitted under S.
170 and belore
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committing the accused to the Court of Session the Magistrate has
no jurisdiction [to authorise· the detention of ai:t accused ill
custody under S. 167 Cr. P.C.;
(ii) fhat ill such a case S. 209 would not confer power on the Magis-
trate to commit il)e accused to custoci~ •ince after the, . enac,\D]ept
ot the Code of Criminal Procedure, 1973, the procedure before
the Magistrate under Chapter XV! ?f thci co!le woui<l not be . aJl
inquiry within the meaning of S. 2 (g) thereof;
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531l
SUPREME COURT REPORTS
[1983] 2 S.C.R.
(iii) that in such a case S. 309 would also not enable the Magistrate to
remand the accused to custody since he would not be competent
to try the. accused ; and
(iv) that in view of the provision contained in S. 207 read with S. 209
Cr. P. C. the Magistrate has to commit the accused forthwith to the
Court of Session and it is only after the order of commitment is
made that the Magistrate will have power to remand tpe accused
to the custody during and until the conclusion of the trial.
Allowing the appeal,
. HELD : The view that ~after the :•accused is brought before the court
along with the police repor(undcr S. 170 Cr. P.C. tl:e Magistrate must forth·
with commit the· accusstd to the Court of Session because the Magistrate
\ would have no jurisdict~on in the absence of any provision to remand the
accused to custody till the order committing the case to the Court of Session
is made, is wholly untenable and must be set aside. [550-F-H]
Section 170 Cr. P.C. obligates the investigating officer to submit the police
report, ifin~the course of investigation s1;1fficient evidence or reasonable ground
is made out for the trial oi;for commitment for trial of the accused, to tho
Magistrate empowered to take cognizatce of the offence upon a police report.
On this report being submitted, the Magistrate takes cognizance of the offence
disclosed in investigation as envisaged by S.190. Cognizance of an offence even if
exclusively triable by the Court of Session has to be taken by the Magistrate ~
cause S. 193 precludes the Court of Session from taking cognizance of any
offence. Taking cognizance of an offence under S. 190 is a purely judicial
function subject to judicial review. The statutory obligation imposed by S, 207
read with S, 209 on tExcerpt shown. Read the full judgment & AI analysis in Lexace.