The Magistrate has the authority to determine the applicable penal section and direct the preparation of a jail warrant accordingly, even if it differs from the opinion of the Investigating Officer.

( 1 ) ON the fact of a written report made at police station Mohammadi, district Lakhimpur-Kheri, on 6-10-1988 by Sri Satish Kumar Bajpai against Sri Harihar Chaitanya (applicant) and one Devesh Kumar Trivedi, a crime was registered under Ss. 336 and 506 of the Penal Code. The applicant was arrested and produced on 7-10-1989 before the Judicial Magistrate having jurisdiction to try the case. The Investigating Officer prayed for detention of the applicant for a period of 14 days in judicial custody. The Magistrate perused the contents of the First-Information-Report and formed an opinion that provisions of S. 307 of the Indian Penal Code were, prima facie, attracted. Therefore, by the impugned order dated 7-10-1988, be directed for the preparation of jail warrant for detention of the applicant under S. 307 of the Indian Penal Code.

( 2 ) THIS petition under S. 482 of the Code of Criminal Procedure (in short, Code) has been filed for quashing the said order.

( 3 ) I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. From the facts given above, it is clear that while exercising powers under S. 167 of the Code, the Magistrate disagreed with the opinion formed by the Investigating Officer in regard to the applicability of the penal Section to the facts disclosed in the complaint. Thus, the short question that emerges for determination is as to whether or not the Magistrate possesses such powers. The learned counsel for the applicant contended that because it amounts to shifting the proceedings in investigation, the Magistrate had no jurisdiction to pass the impugned order.

( 4 ) IT is well known that the functions of the judiciary and the police are complementary and not overlapping. This is also indubitable that investigation of a cognizable offence is the field exclusively reserved for executive through the police department, the superintendence of which vests in the State Government and, therefore, it should not be interfered with by the judiciary. An order for closing or dropping the investigation cannot be passed by the Magistrate, as it will amount to causing interference with the statutory powers conferred on the police. Further, this is also not open to doubt or suspicion that even at investigation stage the Magistrate has to perform certain functions and pass judicial orders e. g. , grant of bail, detention in judicial or police custody, release of property seized by the police. Such orders can be safely characterised as judicial orders passed at the investigation stage and it cannot be said by any stretch of reasoning that such orders cause interference with the investigation by the judiciary.

( 5 ) IN this legal background let us consider the nature of the impugned order passed by the Magistrate, obviously under S. 167 of the Code which provides for the procedure to be adopted by the police, if investigation cannot be completed in twenty-four hours. The police produces the accused in custody and also relevant papers before the Magistrate and prayed for the detention of the accused in judicial or police custody. The Magistrate looks into the material placed before him and is expected to apply his mind before passing an order at that stage. Thus although the matter is at initial stage of the investigation, the Magistrate while passing order under S. 167 of the Code, performs judicial functions.

( 6 ) NOW, if the Magistrate decides to remand the accused to judicial custody, a warrant is prepared and signed by him requiring the Superintendent Jail to detain that person in jail for a period to be clearly specified therein. Undoubtedly, the person is detained for committing some offence punishable under some statute. The Magistrate has, therefore, to mention in his order the relevant Section which stands attracted. He is, in my opinion, within his rights to go through the contents of the report of the occurrence and form an opinion in regard to the Sect