--Power of the Magistrate to agree or disagree with police report submitted under S. 173, Cr.P.C.-

 2018 M L D 1173

(a) Criminal Procedure Code (V of 1898)---

----S. 173---Power of the Magistrate to agree or disagree with police report submitted under S. 173, Cr.P.C.---Scope---Opinion of police was of no binding effect upon the courts, Magistrate could competently agree or disagree with opinion of police while exercising administrative jurisdiction on a report submitted before him within the meaning of S. 173, Cr.P.C.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 190(2) & 193---Cognizance---Scope---Magistrate would become functus officio when he would send the case to Court of Session within the meaning of S. 190(2), Cr.P.C.---Court of session then would decide either to take cognizance or otherwise.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 173, 242 & 265-D---Framing of charge upon police report---Effect---Value of order passed on a police report would stand superseded, if after examining all the material, court found the case to be tried further.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 242 & 265-D---Framing of charge---Scope---Framing of charge would mean commencement of trial.

(e) Criminal Procedure Code (V of 1898)---

----Ss. 242, 173 & 265-D---Framing of charge, a judicial order---Framing of charge was a judicial order while order passed by the Magistrate on a police report was administrative in nature---Judicial order would prevail over an administrative order.

(f) Criminal Procedure Code (V of 1898)---

----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Taking of cognizance and forwarding the case to Court of Session by the Magistrate---Inherent powers of High Court---Magistrate took cognizance as per sections mentioned in the police report as well as under S. 302, P.P.C. and sent the case to Court of Session---Charge against the accused persons had already been framed---Sticking to legality or otherwise of order passed by the Magistrate became infructuous, any comment on merits or demerits of order of the Magistrate might prejudice the case of either side---Accused could claim innocence by resorting to course provided by S.265-K, Cr.P.C.