Oral Judgment:

1. By consent, admitted and heard finally.

2. The applicant is the First Informant in C.R. No.I - 95/2010, which was registered by Mukundwadi Police Station, Aurangabad in respect of offences punishable under section 307 of the Indian Penal Code (IPC), section 452 of IPC, section 323 of IPC, section 506 of IPC etc., read with section 149 of IPC and section 107 of IPC. After investigation, the police filed a chargesheet in respect of offences punishable under section 324 of IPC, section 452 of IPC, section 323 of IPC, section 504 of IPC etc., read with section 149 of IPC and section 107 of IPC. Thus, instead of filing a charge-sheet in respect of an offence punishable under section 307 of IPC, as was initially registered, after investigation, the police concluded the offence to be one punishable under section 324 of IPC and accordingly mentioned that offence in the charge-sheet. The First Informant made an application before the Magistrate, contending that actually, the case related to the offence punishable under section 307 of IPC, and that, the police be directed to investigate further into the matter, as contemplated under section 173(8) of the Code of Criminal Procedure (hereinafter referred to as "the Code"). On this, the Magistrate ordered further investigation. After investigation, the police once again reported, by filing a supplementary charge-sheet, that the offence disclosed was one punishable under section 324 of IPC only and not under section 307 of IPC.

The applicant then once again made an application to the Magistrate stating that the conclusion arrived at by the Investigating Agency in that regard was incorrect, and that, actually the case related to the offence punishable under section 307 of IPC; and that, therefore, it should be committed to the Court of Session. The learned Magistrate, by a detailed order passed on 16th February, 2013 rejected the First Informants prayer for committing the case to the Court of Session. Being aggrieved thereby, the applicant has approached this Court invoking its inherent powers and praying that the order passed by the Magistrate be set aside and the case be directed to be committed to the Court of Sessions.

3. One of the contentions raised by Mr. Sapkal, the learned counsel for the applicant is that the opinion that was formed by the Investigating Agency was merely based on the opinion expressed by the Law Officer attached to the Police Department. According to him, this was not proper and the Investigating Officer was required to form his own opinion, as to what offence/offences was/were disclosed from the facts revealed during the investigation. It is also contended by Mr.Sapkal that the Magistrates order is not proper, in as much as, he has discussed the supposed merits of the matter, as if, he was pronouncing a judgment. Mr. Sapkal has drawn my attention to the observations made in para 11 of the order dated 16.02.2013, wherein there is much discussion as to the supposed intention of the accused persons, by referring to the material in the chargesheet.

4. Mr. Joydeep Chatterji, the learned counsel for the accused persons submitted that the Magistrates view was proper and legal. According to him, since the First Informant had raised the issue, the Magistrate was necessarily required to deal with the same and therefore, the observations made by the Magistrate about the nature of offence disclosed are proper and legal.

5. In the view that I am taking, it is not necessary to go into the merits of the matter, so as to decide as to whether, from the police report and the accompanying documents, the case in respect of an offence punishable under section 307 of IPC is disclosed or not. Such conclusion, if arrived at by this Court, is likely to affect the future course of the trial, and therefore, would be unwarranted. However the well settled legal position with respect to the approach to be adopted by the Magistrate in such a situation, must be mentioned here. It needs to be observed, that while deciding, whether to commit the case to the Court of Sessions, as contemplated under section 209 of the Code, the Magistrate is not bound by the tag attached by the police. The Magistrate at that stage is expected to go through the police report and the accompanying documents and form a prima facie opinion, as to whether any offence triable exclusively by the Court of Sessions is disclosed. If it appears to the Magistrate - on an examination of the matter from a narrow peephole - that such an offence is disclosed, he shall commit the case to the Court of Sessions. What is to be highlighted here is that an independent examination - though limited of the police report and the accompanying documents by the Magistrate is necessary, and that, the Magistrate is not bound to accept the opinion of the police in that regard.

6. Reference may also be made to the provisions of section 323 of the Code in this context. These provisions show that even where it had not appeared to the Magistrate initially that an offence triable exclusively by the Court of Sessions is disclosed, he would still be able to commit the case to the Court of Sessions at a later stage, should it so appear to him during the course of inquiry or trial into the offence. As a matter of fact, under section 323 of the Code, the Magistrate is empowered to commit the case to the Court of Sessions, even if he does not come to the positive conclusion that an offence exclusively triable by the Court of Sessions is disclosed and he can commit the case, even if he only comes to the conclusion that the case is one, which ought to be tried by the Court of Sessions.

7. It appears to me that while passing the impugned order, the Magistrate has gone much deeper than was necessary for determination of the question before him. Some of the observations made by the Magistrate in the order are such as would amount to final conclusions on facts and would have effect even if the question of committing the case to the Court of Sessions would arise at a subsequent stage, as contemplated by section 323 of the Code.

8. After considering the matter form all angles, it appears proper to me that the order passed by the Magistrate should be set aside and the matter should be directed to be reconsidered by some other Magistrate. Appropriate directions in that regard, can be given to the learned Sessions Judge, Aurangabad.

9. Consequently, the application is partly allowed.

The impugned order is set aside. The learned Sessions Judge, Aurangabad shall assign the case to some other Magistrate, who shall consider the application (Exhibit-7) afresh, after giving to all the parties concerned an opportunity of being heard in the matter; and then decide the same in accordance with law.

10. The application is disposed of in the aforesaid terms.