THE HONOURABLE SRI JUSTICE N. TUKARAMJI WRIT PETITION No.43166 of 2017

ORDER:

This Writ Petition is filed with the following relief: “…to issue a writ, order or direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 3^rd respondent filed charge sheet without adding Sections 468 and 471 of IPC is itself illegal, arbitrary and in violation of principles of natural justice consequently to direct the 2^nd respondent to transfer the petitioner case for CBCID (6^th respondent) for fair investigation and filing additional charge sheet..…”

2. Heard K.Srinivas, learned counsel for the petitioner and Mr.M.Srinivas, learned Assistant Government Pleader for Home appearing for respondents No.1 to 4.

3. Learned counsel for the petitioner submits that respondent No.3, the Investigating Officer, has filed a charge sheet without including Sections 468 and 471 of the Indian Penal Code (IPC), despite having collected sufficient material indicating the commission of offences under those provisions. Aggrieved by such omission and the manner in which the investigation was conducted, the petitioner has filed the present writ petition seeking a direction to declare the action of respondent No.3 as illegal, and to transfer the investigation to the CBCID for a fair and proper investigation, with a further direction to file a comprehensive charge sheet including the said penal provisions.

4. Learned Assistant Government Pleader for Home, appearing for respondents No.1 to 4, submits that the crime was duly investigated, and after completion of the investigation, a charge sheet was filed, which was taken on file as C.C. No.316 of 2017 on the file of the learned Principal Judicial Magistrate of First Class, Husnabad. It is further submitted that the trial court has taken cognizance, framed charges, and the matter is presently pending for trial. Hence, at this stage, the contention of the petitioner that certain penal provisions were omitted in the charge sheet is untenable, and the prayer for transfer of investigation is improper and unsustainable. Accordingly, the learned Government Pleader prays for passing appropriate orders.

5. I have considered the pleadings and perused the material on record.

6. The contention of the petitioner is twofold. First, it is alleged that the Investigating Officer failed to include Sections 468 and 471 IPC in the charge sheet, despite availability of materials suggesting the commission of those offences.

7. In this regard, it is to be noted that the procedure prescribed under the Code of Criminal Procedure, 1973 (CrPC) mandates that the police, upon receipt of a complaint and completion of investigation, shall file a final report or charge sheet before the competent court setting out the offences alleged. The Court thereafter applies its judicial mind to the material placed and decides whether to take cognizance and frame charges under appropriate provisions of law.

8. It is thus well settled that it is the prerogative of the Magistrate, upon perusal of the charge sheet and accompanying material, to determine the applicable penal provisions, and not merely the sections mentioned by the Investigating Officer. The Supreme Court has consistently held in Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537, and Nupur Talwar v. CBI, (2012) 11 SCC 465, that the Court is not bound by the sections cited by the police in the charge sheet, and may add or alter charges upon satisfaction that the material justifies the same.

9. In the present case, it is an admitted position that the trial court has already taken cognizance of the charge sheet, framed charges, and the criminal trial is in progress. These developments clearly indicate that the trial court has exercised its judicial discretion after evaluating the material placed before it. Consequently, a direction to the Investigating Officer to include additional sections at this stage would be redundant and procedurally improper.

10. However, it is