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2003 DIGILAW 213 (JHR)

Surendra Pandit v. State of Jharkhand

2003-02-14

D.N.PRASAD

body2003
Order This revision application has been filed against the order dated 28.9.2002 passed by the additional Sessions Judge, Fast Track Court No.II, Deoghar, in Sessions Trial No. 258 of 2000 whereby and whereunder the learned additional Sessions Judge rejected the petition under section 228(a) of the Code of Criminal Procedure (the Code). 2. An application was tiled before the Trial Court/Additional Sessions Judge claiming therein that no case under section 307 of the Indian Penal Code is made out and, as such, the case may be remitted to the court of the Chief Judicial Magistrate, Deoghar for trial as laid down under section 228(a) of the Code. 3. Mr. Arvind Kumar Choudhary, learned counsel for the petitioner submitted that the learned court below committed error in holding and passing the order that the offence under section 307 of the Indian Penal Code is also made out on mere presumption as none of the injuries are grievous in nature nor it has been caused on any vital part of the body rather the injuries are superficial and simple in nature being abrasion on hand or elbow. It is also submitted that there was no intention on the part of the petitioner for committing murder, which will be evident from the allegations made in the first information report itself coupled with the injuries caused, and, as such, the learned court below committed error in rejecting the prayer of the petitioner. which is without any basis. 4. Notice was issued against opposite party no.2 and pursuant to the order for issuance of notice; the petitioner also sent the notice through registered cover, which will be evident from Annexure 1 to the supplementary affidavit but none appears on behalf of opposite party no.2 5. From perusal of the first information report, it is apparent that there is general allegation, all the accused persons for causing assault with lathi indiscriminately but there is no mention or whisper that the injured warded off any blow in saving his life. Moreover the court below apparently committed error in holding on presumption that such injury was caused on elbow, left forearm or left timia presuming that is for saving the life. No one can be held responsible for the offence under section 307 of the Indian Penal Coda only on presumption if there is nothing specific for attempting on the life of the injured. No one can be held responsible for the offence under section 307 of the Indian Penal Coda only on presumption if there is nothing specific for attempting on the life of the injured. There is nothing mention in the first information report in this respect, which will constitute the offence under section 307 of the Indian Penal Code at this stage, and, as such, apparently, the court below committed error in passing the order rejecting the prayer of the petitioner invoking the provision of section 228 (a) of the Code. 6. Thus I find merit in this revision application, which is allowed, and the order impugned dated 28.9.2002 is hereby set aside with direction to the learned Additional Sessions Judge to send back the case to the court of the Chief Judicial Magistrate for trial in accordance with law.