A magistrate has the power to call for a charge sheet from an investigating officer in a cognizable offence, even if the officer has requested a summary "A, B, or C" under Section 173 of the Code of Criminal Procedure.

JUDGMENT - (1) This reference raises a question of some importance about the jurisdiction of a magistrate to direct an investigation officer to submit a charge sheet when that officer in the investigation of a congnizable offence has not filed a charge sheet and has in submitting his report under S.173 of the Code of Criminal Procedure requested that Summary A, B, or C be issued.

(2) We may briefly set out the facts which give rise to this reference. Police constable Murlidhar Goverdhan Patel, attached to the Thana Prohibition Department, was foud drunk in the house of one Gunyabai, investigation was commenced in respect of this incident and a final report was submitted y the investigating officer to the judicial Magistrate F.C. Tnana, requesting that "A" summary be issued. The reasons in support of the request were:

1. That the accused was not found in personal possession of illicit liqour.

2. That there was also no evidene to show if he was ound drunk in a public place.

3. That the main witnesses in the case were interested against the prosecution and they may turn hostile because they were themselves prosecuted for an offcence under Prohibition Act.

4. That there was no eveidence to connnect the accused with the liqour bottles that were found in the house of Gunyabai.

The Judicial Magistrate, First Class, Thana obseved that the facts of the case did not warrant the assumption made by the Investigating Officer in asking for "A summary and directed that a charge sheet be sent up against the constable wihtout making "the witnesses as hostile even before they were given a fair opportunity to come before the court and depose on oath."

(3) Against this order a reision application was preferred by the State to the Court of Session at Thana. the learned Sessions Judge has made a reference to this court recommending thatthe order of the trial Magistrate be set aside and in the alternative, "C" summary be granted on the repot made by the Investigating officer.

(4) The Government pleader ppearing in support of the reference contends tha a Magistrate has no power to call for a charge sheet from a police Officer who after investigating a cognizable cse has submitted a report that a summary "A, B, or C" be issued. It is urged that the opinion of the investigating officer investigating a cognizable offence that the evidence does not warrant the submission of a charge sheet against the person accused of an offecne is binding on the magistrate and the latter is incompent to call upon the officer to submit a charge summary. The learned Government Pleader has in suport of his submisstion invited our attention to a number of decisions, but he has fairly conceded that some of these decisions contains the decision of these cases. Before we refer to these authorities, we may examine the scheme of the Code relating to the investigating of offences. Chapter XIV of the code falls in Part V which powers to investigate. A Police Officer is empowered to investigate into any cognizable offence without the order of a magistrate. In respect of a non cognizable offence, the Police Officer has no power without an order from a Magistrate to commence investigation. Where a Police Officer has received information about or has reason to suspect the commission of a cogbnizable offene, he must forthwith send a report of the same to a Magistrate empowered to take cognizable of such offence upon a police report and to proceed in person, or depute one of his ubordinate officers to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of offender (S.157) A Magistrate receiving a report from Police Officer relating to the commission of Cogniziable offence, may direct an investigation or if the case in manner provided by the dispose of, the case in manner provided by the code (S. 159) Power is also conferred upon certain Magistrates to record statements of confessions in the course of the investigation under Chapte

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