The question, therefore, emerges as to whether the complainant/informant/ prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of the IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR

Criminal Law

At this stage, the Chief Judicial Magistrate after submission of the charge sheet appears to have entertained an application of the Complainant for the addition of three other sections into the charge sheet, completely missing that if it were a complaint case lodged by the complainant before the magistrate under section 190 (a) of the Cr.P.C., obviously the magistrate had full authority and jurisdiction to conduct an inquiry into the matter and if at any stage of the inquiry, the magistrate thought it appropriate that other additional sections also were fit to be included, the magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the magistrate and then the matter would be committed for trial before the appropriate court.

But if a is registered by the police based on the FIR registered at the police station under Section 154 of the Cr.P.C. and not by way of a complaint under section 190 (a) of the Cr.P.C. before the magistrate, obviously, the magisterial inquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the charge sheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however, after submission of the charge sheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case that is lodged before the police by way of the FIR and the magistrate cannot exclude or include any section into the charge sheet after the investigation has been completed and charge sheet has been submitted by the police.

The question, therefore, emerges as to whether the complainant/informant/ prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of the IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offense if the investigating authorities for any reason what so ever have failed to include all the offenses into the charge sheet based on the FIR on which investigation had been conducted.

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