A Magistrate can call for a charge-sheet against an accused person even after the police has submitted a final report, provided that the Magistrate has considered the case diary and heard the arguments of the lawyers for both sides.

Ramratna Singh, J.

1. This application IS directed against an order of the Third Additional Sessions Judge, Patna, refusing to make a reference to this Court.

2. One Ramchanar Sao lodged an information before the police about a dacoity said to have been committed in his house. The petitioners and one Tengar Beldar were named in the first information report. On the 24th July 1962, the police, after completing the investigation, submitted charge-sheet against Tengar Beldar only under the order of the Deputy Superintendent of Police and final report in respect of the other accused including the petitioners on the ground, it is said, that the Deputy Superintendent of Police was of the opinion that the names of the petitioners had been mentioned in the first information due to enmity. On the same date, Mr. Ramyash Prasad Singh the Sub-divisional Magistrate, Sadar, Patna directed that the record be put up on the 31st July 1962 along with the case-diary for consideration as to whether a prima facie case had been made out against any of the other accused persons including the petitioners- On the 31st July 1962, the case-diary was perused and the learned lawyer for the State as also the learned lawyer for the accused persons were heard by the learned Magistrate and the case was adjourned for orders till the 9th August 1962. On that date, he passed the following order :

"Accused in custody produced. Accused on bail present. Perused the case diary. I and satisfied that a prima facie case is made out against all the accused persons named in the F I. R., call for supplementary charge-sheet against the remaining 8 accused persons named in the F. I. R. I. O. must submit charge-sheet by 20-8-62 .

A supplementary charge-sheet was, eventually submitted against the petitioners, and, on the 23rd January 1963, Mr. A. N. Prasad, the successor-in-office for the time being of Mr. Ramayash Prasad Singh, made an order as follows : " Accused in custody (1) produced and accused on bail (8) present. Supplementary chargesheet against the remaining (8) accused persons named in the F I. R. submitted as called for. Cognizance taken. The case is transferred to the Court of Shri D. N Mishra. M. M 1st Class, for commitment trial.

Accused to be produced and appear in that Court on 28 1-63"

Against this order, the petitioners went up to the Court of Session for making a reference to this Court; but their application was dismiss ed. Then, the petitioners filed the present application in revision in this Court, and, in Para 5 of this application, reference has been made to a Full Bench decision of the Calcutta High Court in A. K. Roy V/s. State of West Bengal AIR 1982 Cal 135 (FB), in which it was held that when the police upon investigation, has submitted a final report, a Magistrate cannot direct the police to submit a charge-sheet Though a Bench of this Court had considered this decision of the Calcutta High Court in Mohammad Ashique Khan V/s. Mohammad Kalim Khan, Criminal Revn. No. 1203 of 1960, dated 6-12-1962 (Cal), it could not be brought to the notice of Sahai, J., before whom this application was put up. as this decision has not yet been reported. Consequently, his Lordship referred the present application to a Division Bench for hearing. It as now come up before us for hearing.

3. Mr. Akbar Imam, who has appeared for the petitioners, submitted that the Sub-divisional Magistrate, Mr. Ramyash Prasad Singh, had no power to call for a charge-sheet, as such an action would amount to an interference with the investigation by the police. It is well settled that the functions of the judiciary and the police are independent and each is left to exercise its own function, subject of course, to a right of the Court to interfere in an appropriate case. The question, however, in the instant case is whether the order of the 9th August 1962 calling for charge-sheet amounted to an interference with the investigation, that is, with the function of the police. In my