JUDGMENT Vinod Prasad, J.
1. Heard learned Counsel for the applicant and the learned A.G.A.
2. Supplementary affidavit filed by counsel for the applicant is taken on record.
3. The applicant has challenged the proceeding of Case Crime No. 176 of 2005, under Sections 323, 308, 504, I.P.C, Police Station Badlapur, District Jaunpur. The Charge sheet has been laid against the applicant for the offence under Sections 323, 308, 504, I.P.C., vide Crime No. 176 of 2005 by the police of Police Station Badlapur, District Jaunpur.
4. The contention of the learned Counsel for the applicant is that initially an F.I.R. was registered under Sections 323 and 504, I.P.C, the said offences were not cognizable offences, therefore, the police had no power to investigate the matter. She contended that because initially the investigation was bad, therefore, the Charge Sheet should be quashed. She has relied upon a judgment of this Court reported in 2001 U.P. Criminal Ruling 147 Surendra v. State of U.P. The said judgment has not considered true import of law and the fact that before submitting charge Sheet the police got the case converted into the cognizable offence under Section 308, I.P.C. As soon as the offence was got converted into the cognizable offence, the police got a right to investigate the offence. Prior to submission of charge sheet the police has clothed itself with the power to investigate in this case. The Court was not in picture at that stage at all. At the relevant time, when the charge sheet was laid in the Court, the police had already possessed of with the power to investigate the matter. Since the Charge Sheet was submitted for a cognizable offence there is no reason to quash the said charge sheet.
5. The aforesaid law since has not been considered in the aforesaid judgment, the decision given in the case of Surendra Kumar v. State of U.P. (Supra) is declared as per in curiam.
6. The contention of the learned Counsel for the applicant is that no offence under Section 308, I.P.C. is made out against the applicant in view of the medical report of the prosecution side. The applicant has got every right to convince the Magistrate at the stage of 209 Cr.P.C. that no offence triable by the Court of Session is made out. The Magistrate is not supposed to act like a post office at that stage. The Magistrate will examine the contention of the applicant as to whether any cognizable offence, triable by the Court of Session, is made out or not. If he finds that no offence triable by the Court of Session is made out then the Magistrate need not commit the case to the Court of Sessions. The Magistrate will decide the application within a period of one month from the date of its filing.
7. With the aforesaid direction this application is disposed of finally.