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2016 DIGILAW 2184 (ALL)

Bachcha Rai v. State of U. P.

2016-06-10

ABHAI KUMAR

body2016
JUDGMENT Abhai Kumar, J. Vakalatnama on behalf of opposite party nos. 2 to 4 has been filed today which is taken on record. 2. Heard learned counsel for the revisionist as well as learned AGA for the State and counsel for the opposite party nos. 2 to 4. 3. This criminal revision has been filed against the order dated 13.5.2016 passed by learned Additional Sessions Judge/Fast Track Court No. 3, Ballia in Criminal Revision No. 30 of 2016, (Chhatthu Singh and others Vs. State of U.P.) arising out of Case Crime No. 477 of 2015, under Sections 307, 324, 504, 506 IPC, Police Station Rewati, District Ballia. 4. By the impugned judgment, criminal revision no. 30 of 2016 of opposite party nos. 2 to 4 was allowed by the revisional court and set aside the order passed by Judicial Magistrate, Court No. 1 Ballia in Case Crime No. 447 of 2015, State Vs. Chhatthu Singh, dated 8.12.2015 whereby learned Magistrate while taking cognizance upon the charge-sheet filed under Section 173 (3) Cr.P.C., summoned the opposite party no. 2 to 4 under Section 307 IPC also besides other Sections 324, 504, 506 under which charge-sheet was submitted. 5. It was submitted by the learned counsel for the revisionist that Magistrate Court was well within its jurisdiction to summon the opposite party nos. 2 to 4 in the aforesaid sections that were not mentioned in the charge-sheet which was submitted by the police on the basis of record that was available with the charge-sheet, whereas learned counsel for the opposite party vehemently argued that Magistrate Court ought not to have passed the order merely saying that offence under Section 307 IPC is also made out, rather he should have taken all the facts and evidence produced alongwith the charge-sheet, and revisional court perfectly therefore reversed the order of the Magistrate Court. 6. It is also submitted by the learned counsel for the opposite parties that the revisionist is still having a right to contest before the Magistrate Court because the revisional court has directed the Magistrate Court to decide the matter afresh, whereas counsel for the revisionist submitted that the revisional court has directed the magistrate court to pass order in view of the observations made in the revision and magistrate court is having no option but to pass the order accordingly. 7. 7. Considered the submissions made by the learned counsel for the parties. 8. Full bench of the Apex Court in Dharam Pal and others vs. State of Haryana and another, (2014) 3 SCC 306 , considered the right of a Magistrate while passing any order under Section 190(1)(b) upon the police report submitted before him under Section 173(3) Cr.P.C. The Apex Court has formulated four points which are as follows: "i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?" 9. While deciding the point nos. 1 and 2, Hon'ble Apex Court observed in paragraphs 22 and 24 which are reproduced below: "22. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same. 24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter." 10. Although in the instant case Hon'ble Apex Court was dealing with the matter regarding summoning of additional accused that are shown in the column 2 of the charge-sheet and has clearly propounded that magistrate is well within his jurisdiction and power to summon the persons shown in the column 2 of the charge-sheet who are also to be tried on the basis of the material submitted before the magistrate concerned on the basis of police report under Section 173(3) Cr.P.C. On the same analogy it can very well be said that if on the basis of a material submitted before the magistrate under Section 173(3) Cr.P.C., magistrate is well within its power and jurisdiction to summon the charge-sheeted accused of column no. 1 in other sections also though charge-sheet is not submitted in those sections. 11. On this basis, learned counsel for the revisionist submitted that learned magistrate passed the order dated 8.12.2015 and revisional court without interfering in that substituted its own conclusion which was not permissible. 12. Section 397 Cr.P.C. which gives the power to the Sessions Court to entertain the revisions is reproduced as follows: "397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." 13. By the power conferred upon Sessions Judge under Section 397 Cr.P.C., the Sessions Judge may examine the record of any proceeding before any inferior criminal court for satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, as to the regularity of any proceedings of such inferior court. 14. The contention is that the Sessions Judge was not competent enough to interfere in the order of the magistrate court, yet it can very well be said that legality, propriety as well as correctness of the order can be viewed and reviewed by the Sessions Judge. 15. 14. The contention is that the Sessions Judge was not competent enough to interfere in the order of the magistrate court, yet it can very well be said that legality, propriety as well as correctness of the order can be viewed and reviewed by the Sessions Judge. 15. Learned Magistrate based its order upon the medical report which says that the injuries alleged to have been caused by fire arm and summoned the opposite parties. 2 to 4 under Section 307 IPC also beside Sections 324, 504, 506 IPC under which charge-sheet was submitted. 16. It is also observed by the magistrate court that in the statement under Section 161 Cr.P.C., three witnesses stated that Ayodhya Singh fired with the intention to kill on the exhortation of Kamal Singh. It is also observed by the magistrate court on the basis of law propounded by the apex court in M/s SWIL Ltd V. State of Delhi and another, 2001(2) JIC 842 (SC) that a person not named in the charge-sheet can also be summoned at the time of taking congnizance from police report, on the basis of first information report, and other evidence collected by the police. 17. So far as the question of summoning a person who is not charged, can be summoned as has already been observed above and held by Hon'ble Apex Court in Dharam Pal and others (supra). 18. It is submitted by the learned counsel of the opposite party that FIR by the revisionist was lodged after the order of the magistrate court under Section 156(3) Cr.P.C., the injury to the complainant side that is alleged to have been caused by fire arm is forged one. Injured was directed to appear before the medical board but he did not produced himself before the medical board and adverse inference has rightly been drawn by the revisional court. It is also submitted by the learned counsel for the opposite party no. 2 to 4 that injury to Bachcha Rai was superficial in nature in the ex-ray report which was not found serious. It was not also on vital part and was between two fingers, injury was concocted and fabricated one, and magistrate concerned did not consider the fact that injury was not caused with the intention to kill and if no intention can be inferred regarding killing then offence under Section 307 IPC is not made out. 19. It was not also on vital part and was between two fingers, injury was concocted and fabricated one, and magistrate concerned did not consider the fact that injury was not caused with the intention to kill and if no intention can be inferred regarding killing then offence under Section 307 IPC is not made out. 19. It is admitted fact that Investigating Officer after considering the evidence, collected during the investigation, and on the basis of submission made by the witnesses under Section 161 Cr.P.C, came to the conclusion that injury caused to Bachcha Rai was not with the intention to kill. 20. The revisional court after considering the facts before it found that injured Bachcha Rai intentionally avoided the medical board, moreover Investigating Officer after investigation found that allegation under Section 307 was not true and it is also observed by the revisional court that order of magistrate regarding section 307 IPC could not have been passed and that is why came to the conclusion that charge under Section 307 IPC is not made out. Revisional Court after appreciating the evidence, submitted in the police report under Section 173(3) Cr.P.C., came to the conclusion that inference drawn by the magistrate, by the order dated 8.12.2015, was not correct. Magistrate court ought to have considered the nature of injury as well as place of injury as well as the intention of the defending party. By merely saying that fire arm injury is caused with the intention to kill cannot be a correct stand and in the circumstances the revisional court find it to be improper and incorrect then same cannot be questioned. 21. On the basis of above, this Court is of the view that revisional court was well within its jurisdiction to reconsider the order passed by the learned magistrate and the variations made by the revisional court regarding the allegations under Section 307 IPC is based upon proper appreciation of evidence, moreover fresh opportunity was also afforded to the revisionist before any order is passed by the magistrate court. I do not find any reason to interfere in the order of the revisional court and therefore revision lacks merit and is liable to be dismissed. 22. This criminal revision is dismissed with the aforesaid observations.