JUDGMENT 1. - Assailing the order dated 9.4.1991 of the learned Additional Sessions Judge, Chhabra Distt. Baran, of framing charges, under sections 304, 304/34 & 342 IPC, the accused- petitioners filed the instant revision seeking direction of discharge. 2. When the matter came up for hearing, this Court on 29.7.1997, issued notices to Jodh Singh, SHO and Abhay Singh, ASI who were made co-accused in the case but were discharged by the learned trial Court vide impugned order dated 9.4.1997. 3. Brief resume of the facts is that informant Ratan Lal instituted FIR with the Police Station Chhipabarod on 16.4.1997 in connection with the death of his elder brother Chhitar Lal. A case under sections 302, 342 & 34 IPC was registered against the accused-petitioners Banshilal, Ram Gopol, Pana Chand and Jagdeesh and investigation commenced. Statements of Megh Raj Mali, Kalu and Ganga Ram were recorded. These witnesses were in the police custody along with the deceased Chhitar Lal on 15.4.1994, a day prior to the death of Chhitar .Lal. In their statements they deposed that police personnel gave beating to Chhitar Lal in the police custody. Dead body of Chhitar Lal was subjected to post mortem on 16.4.1994 at 4.30 p.m. and the injuries sustained by him were found ante-mortem about 12 hours old. Case was investigated by the C.I.D. (C.B.) and the conclusion was that the deceased was assaulted by police personnels while he was in police custody. Charge-sheet was filed against the accused-petitioner along with Abhay Singh, ASI and Jodh Singh SHO. 4. Learned counsel Mr. R.P. Vijay and Mr. Manoj Sharma, appearing for Jodh Singh and Abhay Singh canvassed that the co-accused persons in the instant revision have not asked any relief against Jodh Singh and Abhay Singh as such co-accused should not be permitted to argue against Jodh Singh and Abhay Singh. Learned counsel further contended that as the complainant or the State did not challenge the order of discharge of Jodh Singh and Abhay Singh no interference is called for in the instant revision. Supporting the impugned order learned counsel urged that there is no illegality in it. 5. Mr. Samander Singh, learned counsel for the accused- petitioners on the other hand submitted that Jodh Singh and Abhay singh could not have been discharged. There is sufficient material on record which prima facie connect them with the crime. Supporting the impugned order learned counsel urged that there is no illegality in it. 5. Mr. Samander Singh, learned counsel for the accused- petitioners on the other hand submitted that Jodh Singh and Abhay singh could not have been discharged. There is sufficient material on record which prima facie connect them with the crime. Statements of witnesses recorded during investigation were read over before me. Learned counsel contended that according to the statements of witnesses the deceased was given beating by the police while the deceased was in police custody and this fact is corroborated from the duration of injuries as noted in the post- mortem report. The deceased was arrested on 14.4.1994 and as per Post-mortem report the deceased might have sustained injuries in the mid-night of 15/16.4.1994. From the entire material available on record real culprits are Jodh Singh and Abhey Singh. After arrest in criminal case bearing FIR No. 104/94 deceased Chhitar Lal was produced before the Magistrate and he did not complain of any beating by the complainant party of that case. In his arrest memo no injury was shown and he was not medically examined soon after arrest and before remand was obtained. Reliance was placed on State of Maharashtra v. Priya Sharan Das, AIR 1997 SC 2041 . 6. I have reflected over the rival submissions and carefully scanned the material on record. 7. Admittedly, the accused-petitioners in the instant revision have only prayed that the impugned order be set aside and they be discharged. They have not sought relief against Jodh Singh and Abhey Singh. Though in the body of the petition facts in respect of material against Jodh Singh and Abhey Singh have been narrated. It is no doubt that the State or complainant has not come up before this Court calling in question the impugned order. But under section 401 of the Code of Criminal Procedure this Court has powers to revise the order suo motu. A perusal of the record demonstrates that Meghraj Mali, Kalu and Gangaram were in the police custody on 15.4.1994 along with the deceased Chhitar Lal. In his statement u /s. 161 Cr.P.C. Meghraj Mali stated that on 14.4.1994 he was kept in police lock up at Police Station Chhipabarod. Deceased Chhitar was also in the police lock up. He further deposed that Chhitar was given beating by police personnel. In his statement u /s. 161 Cr.P.C. Meghraj Mali stated that on 14.4.1994 he was kept in police lock up at Police Station Chhipabarod. Deceased Chhitar was also in the police lock up. He further deposed that Chhitar was given beating by police personnel. In the day and thereafter at about 10.00 p.m. deceased Chhitar was badly beaten by the police personne continuously for a period of one and half hours. This witness heard noises of beating. This witness had seen deceased Chhitar wearing clothes damped with potty. Thereafter on being asked by the witness deceased Chhitar told him that the said condition was because of beating by the police. This witness further deposed that he had seen injuries on the person of deceased Chhitar and Chhitar died in the morning. Similar deposition was narrated by other witnesses Kalu and Gangaram, who were also in the police custody. 8. A look at the post-mortem report of the dead body of Chhitar reveals that the post-mortem of the dead body of Chhitar was conducted at 4.30p.m. on 16.4.1994. It has been stated in the said report that probable time of death was 12.00 hours. Copies of case diary of Criminal Case bearing FIR No. 104/94 have been annexed with the case file of the Court below which go to show that Chhitar Lal was arrested on 14.4.1994. Certified copy of the remand form has also been annexed with the charge-sheet which reveals that deceased Chhitar Lal was arrested on 14.4.1994 at about 4.00 p.m. by the Police Station Chhipabarod. He was produced before the Magistrate on 15.4.1994 and the learned Magistrate granted two days police custody remand. No injury on the person of Chhitar has been mentioned in the-remand form. Indisputably the deceased Chhitar after arrest in criminal case FIR No. 104/94 did not complain of any beating by the complainant party before the learned Magistrate when produced before him on 15.4.1994. In his arrest memo no injury was on his person and deceased Chhitar Lal was not medically examined soon after his arrest and before remand was obtained. A look at the detailed enquiry report of Additional Superintendent of Police CID (CB) shows that deceased Chhitar Lal was given beating after his arrest and on account of this beating Chhitar Lal sustained injuries which caused his death. A look at the detailed enquiry report of Additional Superintendent of Police CID (CB) shows that deceased Chhitar Lal was given beating after his arrest and on account of this beating Chhitar Lal sustained injuries which caused his death. The learned Court below in the impugned order observed that in the statement of witnesses recorded by the Additional Superintendent of Police Kota names of Jodh Singh and Abhey Singh did not appear but their names have been added in the investigation conducted by the Additional Superintendent of Police Crime Branch Kota, therefore no prima facie case existed against Jodh Singh and Abhey Singh and they deserve to be discharged. I am unable to pursuade myself with this finding arrived at by the learned Court below. It was not proper for the learned Court below to seek independent corroboration at the stage of framing charge. The learned Court below has after ignoring the material on record discharged Abhey Singh and Jodh Singh, which has shocked my judicial conscious. The learned Court below has discharged Abhey Singh and Jodh Singh, ignoring the post-mortem report of deceased Chhitar Lal, remand paper of the deceased Chhitar Lal, and the statements of the witnesses recorded by the Additional Superintendent of Police CID (CB). I am of the view that charge under sections 342 & 304 IPC is prima facie made out against Abhey Singh and Jodh Singh from the material on record. The learned Additional Sessions Judge should frame charge u /ss. 324 Sr 304 IPC against Abhey Singh and Jodh Singh. I do not think it proper to say anything further as in the view that I am taking as Jodh Singh and Abhey Singh will have to face a trial and whatever observations I make now may cause some prejudice to them at the trial. I would only say that the Additional Sessions Judge was wholly wrong in discarding the material placed before the Court as false and discharging Abhey Singh and Jodh Singh on that ground. 9. In State of Maharashtra v. Som Nath Thalia, 1996 (4) SCC 659 their Lordships of the Supreme Court propounded thus - (para) 32 : "The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. 9. In State of Maharashtra v. Som Nath Thalia, 1996 (4) SCC 659 their Lordships of the Supreme Court propounded thus - (para) 32 : "The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage." 10. In view of the observations made herein above, the impugned order of the learned Additional Sessions Judge Chhabra so far as it relates to discharge of Jodh Singh and Abhey Singh, stands set aside and the case is remitted back to the Additional Sessions Judge Chhabra for framing charge under sections 342 & 304 IPC against Abhey Singh and Jodh Singh. The record of the Court below shall forthwith be sent back to the learned Court of Additional Sessions Judge Chhabra. The accused-petitioners as well as Jodh Singh and Abhey Singh are directed to appear before the learned Additional Sessions Judge Chhabra on 10.8.1998.Petition disposed of. *******