KASHEMALI GOMASTA Vs. STATE
HIGH COURT OF CALCUTTA
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(1.) This Rule involves the question whether a Magistrate has power to take cognizance of a case, notwithstanding a final report by the police, in the absence of a Naraji petition and, therefore, without examining a complainant.
(2.) In this case, the police submitted a final report, whereupon the learned Magistrate went through the police diaries as also the statements recorded under Section 161 of the Code of Criminal Procedure and then purported to take cognizance of offences under "MM read with Section 149, Section 304 read with Section 109 as also under Section 148 of the Indian Penal Code against the Petitioners. The learned Sessions Judge, who was moved in the matter, held that the learned Magistrate could properly decline to accept the police report and had power to take cognizance of the ease on the basis of the materials before him.
(3.) Mr. Dutt has argued that the learned Magistrate's power to take cognizance is circumscribed by the provisions of Section 190 of the Code of Criminal Procedure and that he could not take cognizance of the case on the basis of the police diaries and statements recorded under Section 161 of the Code. In our view, cognizance cannot be taken of an offence on the basis of police diaries which can only be looked into, not as evidence in the case, but to aid the court in an enquiry or trial. Nevertheless, the Magistrate is not bound to accept a final report under Section 178 of the Code of Criminal Procedure. When the police submit a final report recommending that mo action need be taken, it becomes the duty of the Magistrate concerned to carefully consider the materials collected by the police and if satisfied that there is enough material to put the accused on trial, to direct the police to submit a charge-sheet. It is said that in this case there was some sort of a Naraji petition but" that it did not disclose any offence on the part of the Petitioners. Be that as it may, the learned Magistrate purported to take cognizance of the alleged offences on the basis of the materials collected by the police. As we say. if the Magistrate was satisfied that the materials collected by the police, disclosed the commission of the offences in question, it was his duty to direct the police to submit a charge-sheet or to examine the complainant before taking formal cognizance.;
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