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1995 DIGILAW 927 (RAJ)

Gyarsi v. State of Rajasthan

1995-10-11

RAJENDRA SAXENA

body1995
Honble SAXENA, J. – Notice was given to the learned Public Prosecutor and she has accepted the same. Heard. The S.H.O., Police Station Bassi, after investigation in Crime No. 216/90 submitted the challan against seven accused persons in the court of learned Munsif & Judicial Magistrate, Jaipur District, who in turn committed the case to the Sessions Judge Jaipur District, from which ultimately the case was transferred to the court of learned Additional Sessions Judge, Jaipur District. An application u/s. 319 Cr.P.C. was filed on behalf of the prosecution. The learned trial Judge after perusing the challan papers and the evidence collected by the I.O. and also relying on the law laid down on Roshni & Ors. vs. State of Rajasthan (1) took cognizance against the accused petitioners (1) Smt. Gyrasi and (2) Smt. Bhagwati for the offences u/s. 147, 148, 323, 325, 302 & 302/149 IPC vide his order dated 14.9.95. He also ordered for issuing warrants against the accused petitioners for ensuring their attendance and simultaneously he further ordered that charge for the said offences be also framed against the accused petitioners. Dissatisfied by the impugned order the petitioners have filed this revision petition. (2). Shri Mehrishi, learned counsel for the accused petitioner has rightly not challenged the impugned order to the extent whereby cognizance against the accused petitioners for the said offences was taken because, the deceased Radhey Shyam in his police statement had specifically mentioned about the overt acts of the accused petitioners. (3). A perusal of the post mortem examination report of Radhey Shyam reveals that he died after four days of the incident and the doctor did not give any final opinion about cause of his death, for want of the chemical analysis and histopathological examination of the various visceras taken out from the dead body. The learned trial Judge has simply ordered that warrants be issued against the accused petitioners to ensure their attendance. He has also not specified as to whether the warrant be issued bailable or non bailable. The petitioners are ladies. As per post-mortem report, deceased Radhey Shyam did not sustain any fracture on his skull bones, but it only a hoematoma underneath his occipital bone was detected by the doctor. Hence keeping in view all the facts and circumstances of this case, I feel that it will be just and proper if bailable warrants in the sum of Rs. As per post-mortem report, deceased Radhey Shyam did not sustain any fracture on his skull bones, but it only a hoematoma underneath his occipital bone was detected by the doctor. Hence keeping in view all the facts and circumstances of this case, I feel that it will be just and proper if bailable warrants in the sum of Rs. 10,000/- (Rupees ten thousand) are issued against the petitioners to ensure their attendance. (4). The learned trial Magistrate while taking cognizance against the petitioners has also ordered that charge for the offences u/s. 147, 148, 323, 325, 302 and 302 /149 IPC be framed against them. This order is manifestly illegal and against the provisions of Section 227 & 228 Cr.P.C. It is only when the accused appears before the trial court that the stage for discharge of accused or framing of charges against him commences, and for that the Sessions Judge is required to peruse and consider the record of the case submitted alongwith the challan and also to hear the submi- ssions of the accused petitioners and the prosecution in this behalf. (5). In the instant case, the learned Sessions Judge has completely ignored the specific provisions of Section 227 and 228 Cr.P.C. and without affording any opportunity of hearing to the petitioners has ordered for framing charge against them. Therefore, this part of the impugned order is tantamount to abuse of process of court and the same cannot be sustained. (6). In the result, this petition filed u/s. 482 Cr.P.C. is partly allowed and the order of the trial Judge, whereby he has taken cognizance against the accused petitioners for the aforesaid offences is maintained but the order regarding framing of charge against the accused petitioners for the said offence is hereby quashed. It is further directed that the bailable warrants for Rs. 10,000/- (Rupees ten thousand) be issued against the accused petitioners. The accused petitioners may also appear before the learned trial Judge on or before the next date fixed by him in this case.