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Petitioner: SHAKEEL AHMED VS Respondent: StateHonorable Justice Fahim Ahmed SiddiquiBashir Ahmed Almani
2020 P Cr. L J Note 35 [Sindh (Hyderabad Bench)] Before Fahim Ahmed Siddiqui, J SHAKEEL AHMED---Applicant Versus The STATE---Respondent Criminal Revision Application No. S-156 of 2016, decided on 16th November, 2018. Criminal Procedure Code (V of 1898)--- ----S. 190---Cognizance of offence by Magistrate---Material to be considered---Scope---Bail---Complainant assailed order of Sessions Judge whereby he, at the time of handling bail application, had concluded that certain sections mentioned in the FIR were not relevant for framing charge and had directed the Magistrate to consider whether cognizance was required or not---Validity---Sessions Judge was not required to give any opinion regarding framing of charge at the time of deciding bail application---Cognizance was the sole responsibility of the Magistrate, who at the time of taking cognizance had to consider the material placed by the police before him in the shape of final report---Magistrate could consult the police file but no other material beyond that---High Court directed the Magistrate to act strictly in accordance with law at the time of dealing with final report submitted before him without considering any extraneous material and being influenced from the observation of Sessions Judge---Revision petition was disposed of accordingly. Bashir Ahmed Almani for Applicant/Complainant. Asif Gul Bhatti for Accused. Ms. Ramehsan Oad, Assistant Prosecutor-General for the State. ORDER FAHIM AHMED SIDDIQUI, J.---Through the instant Criminal Revision Application, the applicant has impugned the Criminal Reference No.1098 dated 11.08.2016 made by the learned 3rd Additional Sessions Judge, Hyderabad, as well as order dated 25.08.2016, whereby certain guidelines/directions were given to the concerned Judicial Magistrate in respect of cognizance under sections 389, 211, P.P.C. It is the contention of the learned counsel for the applicant/ complainant that at the time of handling bail application, learned 3rd Additional Session Judge, Hyderabad came to conclusion that some of the sections mentioned in the FIR are not charge worthy, as such, the learned 3rd Additional Sessions Judge, Hyderabad has made a reference to the learned Sessions Judge, Hyderabad and the learned Sessions Judge directed the concerned Magistrate to consider the issue whether cognizance is required to be taken regarding those sections or not. He further submits that the reference as well as direction of the learned Sessions Judge, is contrary to law and learned Magistrate is required to take or not to take cognizance after going through the material placed before him by the police in the shape of final report. Conversely, learned counsel for the respondents submits that the reference as well as order of learned Sessions Judge is quite clear and from perusal of the same it appears that the charge cannot be framed in respect of certain sections mentioned in FIR. However, he frankly admits that the cognizance is purely the responsibility of Judicial Magistrate and at the time of taking cognizance, he has to consider the material placed before him by the police. On the other hand, learned A.P.G submits that in the instant case, the Judicial Magistrate may be allowed to consider the material placed before him by the police; and to act as per law in the light of such material. I have heard the arguments advanced and after meticulous perusal and scanning of the record placed before me, I am of the view that unless the cognizance is not taken, the Sessions Judge is not required to give any opinion regarding framing of charge at the time of deciding a bail application. Under the law, the cognizance is the sole responsibility of Magistrate who at the time of taking cognizance has to consider the material placed by the police before him in the shape of final report and at the time of taking cognizance, he may consult the police file but no other material beyond the same. In these circumstances, this Criminal Revision Application is disposed of with direction to the learned Judicial Magistrate concerned to act strict in accordance with law at the time of dealing with final report submitted before him without considering any exterior material and being influenced from the observation of learned 3rd Additional Sessions Judge, Hyderabad in her reference and the order of learned Sessions Judge.Criminal Revision Application Stands disposed of in above terms. SA/S-47/Sindh Order accordingly.