Whether the Magistrate is bound to grant remand for judicial custody in those sections only for which prayer has been made by the investigating officer in remand application.
During the course of investigation, remand under section 354, 506 IPC was sought by the investigating officer.When the applicant-accused was brought to court for seeking remand, an application was moved on behalf of the prosecution to grant remand under section 376 IPC also. The learned magistrate after hearing parties counsel, allowed the application of prosecution and granted remand sending the applicant in judicial custody under section 376, 323, 506 IPC.
If in any case, the investigating officer deliberately commits mischief and with a view to help the accused, he does not seek remand in proper sections, then the magistrate can not sit as silent spectator. While granting remand under section 167 Cr.P.C., the magistrate is required to go through the case diary.
Investigating officer is not the sole authority to decide as to what offence is made out on the basis of material in case diary.
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