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2017 DIGILAW 902 (JK)

Muneer Hussain v. State of J&K

2017-09-28

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. The petitioners have filed the instant Criminal Revision under Section 435 Cr.P.C. seeking setting aside of the order dated 09.05.2016 passed by the Additional Mobile Magistrate Thanamandi whereby the charge under Sections 458, 323, 147, 506 RPC was framed against the petitioners. 2. It is stated in the petition that the petitioners and respondent No. 2 are from the same family. On 22.02.2016 at around 6 O' clock on a pity issue, children of both the families have started to quarrel with each other and petitioner No. 1 being elder one in both the families has intervened in order to resolve the issue and respondent No. 2 gets infuriated and hits on the left ear side with the stick to petitioner No. 1 and the blow was such an intense that the petitioner No. 1 has received the severe ear injury and the matter was reported to Police Station Thanamandi. The concerned police has not taken any immediate action against the accused person and on contrary at the behest of respondent No. 2 has lodged FIR No. 25/2016, dated 22.02.2016 under Sections 458/147/148/323 RPC. After due pursuance by petitioner No. 1 has finally police has lodged the FIR No. 34/2016, dated 22.03.2016 under Section 325/323 RPC against respondent No. 2 and other accused persons and finally the aforesaid FIRs were culminated into Final Report No. 25/2016 titled State vs. Zabir Ayaz and Others and Final Report No. 24/2016 titled State vs. Showkat Nazir and Others respectively both dated 01.04.2016 was presented before the Additional Mobile Magistrate Thanamandi. It is needless to mention here that the police in presenting the final report in FIR No. 25/2016 has dropped the charges under Section 148 RPC and both the challans are pending before the learned Court and the next date of hearing in Challan No. 25/2016 is 28.08.2017. It is further stated that the impugned order dated 09.05.2016 not falls under the definition of interlocutory order as given in the Section 435(2) Cr.P.C. In view of judgment passed by the Constitutional Bench of the Hon'ble Rajasthan High Court in reference of revision titled Jarnail Singh vs. State of Rajasthan, 1992 Cri. It is further stated that the impugned order dated 09.05.2016 not falls under the definition of interlocutory order as given in the Section 435(2) Cr.P.C. In view of judgment passed by the Constitutional Bench of the Hon'ble Rajasthan High Court in reference of revision titled Jarnail Singh vs. State of Rajasthan, 1992 Cri. L.J. 810 after summing up the various High Court & Supreme Court Judgment, the Hon'ble Court has held in Para 34 that: "To sum up, we find that an order framing charge is an order of moment, it deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to a discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre-trial proceedings against the accused the order framing charge takes away a very valuable right of the deceased. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of section 397(2) Cr.P.C. and such an order is amenable to the supervisory jurisdiction of the court of Section and the High Court under Section 397(1) Cr.P.C." 3. The petitioners aggrieved of the order dated 09.05.2016, whereby the learned Additional Mobile Magistrate Thanamandi has framed the charge against the petitioners under Sections 458/323/147/506 RPC without application of mind and without appreciating the facts and evidence placed on record, on the following grounds: (i) That the bare reading of the challan and statement of the complainant not showing even iota of evidence against the petitioners for framing of charges under Section 458 RPC. (ii) That the complainant (respondent No. 2) and witness No. 1 in their statements before the Police under Section 161 Cr.P.C. had categorically stated that petitioners firstly arrived at their outside of the home and started to hurling abuse and thereafter entered in his house and beaten to respondent No. 2 and his family members therefore, no charges under Section 458 RPC is made out in view of the definition of Lurking House Trespass is given under Section 443 RPC, therefore, the impugned order requires to be set aside. (iii) That the bare conjoint reading of both the FIRs clearly showing that the real occurrence was occurred at around 7 to 7.30 p.m. and the petitioner No. 1 was beaten ruthlessly and received the severe grievous injuries, the police had lodged the FIR No. 34/2016, dated 22.03.2016 under Sections 325/323 RPC and bare reading its FIR and challan clearly revealing the whole truth and when a person was grievous injury then how he can commit the offence as alleged in the impugned FIR No. 25/2016, dated 22.02.2016 under Sections 458/147/148/323 RPC clearly showing the non-application of mind by the learned court, therefore, impugned order requires to be set aside. (iv) That the concerned police in order to implicate the petitioners in a heinous offence have slapped the section 458 RPC in the impugned FIR and bare reading the FIR, Challan and the statements of the witnesses shows that there is no lurking house trespass case has been made out against the petitioners at the most the concocted story of the prosecution had fall the case under Section 451 RPC and this vital aspect has been totally overlooked by the learned Additional Mobile Magistrate, Thanamandi while framing the charges therefore, impugned order requires to be set aside. 4. Heard learned counsel for both sides, gone through the file and considered the law on the subject. 5. In 2011 (1) SLJ 287 in case titled Mohammad Aslam Malik vs. State and Others, 2011 (1) JKJ 9 it is held as under:- "3. Section 435 of Code of Criminal Procedure has been amended and sub-section (4-a) has been inserted by Act of XXXII 1989. Section (4-a) is reproduced as under:- "The power of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal inquiry trial or other proceedings." 6. A Division Bench of this court in case titled S.K. Mahajan vs. Municipality Jammu and Others, 1982 KLJ 1 , had the occasion of considering the question as to whether the order of framing charge is interlocutory order and the bar contained in section (4-a) of Section 435 Cr.P.C. will be attracted and revision filed against each order is maintainable. 7. 7. The Hon'ble D.B. had the occasion of considering plethora of judgments rendered by Hon'ble Supreme Court which include case titled Mohan Lal Manganlal Thakkar vs. State of Gujarat, AIR 1968 SC 733 , Amar Nath and Others vs. State of Haryana and Others, AIR 1977 SC 2185 , Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47 , R.P. Kapoor vs. State of Punjab, AIR 1960 SC 865, Raj Kapoor and Others vs. State (Delhi Administration), AIR 1980 SC 258 and Baldev Dass vs. Filmistan, AIR 1970 SC 706 and after considering these judgments came to following conclusion:- (i) The bar created by sub-section (4-a) of Section 435 would be attracted to it, and the court would be powerless to revise an order framing a charge in exercise of its powers under section 439 read with section 435, where the challenge to the order is based upon the merits of the main co-accused has been guilty of the offence charge. (ii) Such a bar would not be, however, attracted to it, and the court would be competent to revise an order framing a charge in exercise of its aforesaid powers in case the challenge to the order is based upon a plea, which is independent of the main controversy, and which if accepted, would conclude the proceeding against the accused." 8. Section 435 Cr.P.C. has been substituted by the Act of XXIII of Samvat 1989, sub-section 02 of the said section is reproduced as under:- "(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 proceedings." The provisions is pari materia with earlier provisions in section (4-a) of section 435 Cr.P.C. 9. The issue involved before the Hon'ble Division Bench of this court was as to whether order of framing charge could be challenged on its merits by filing revision petition. The Hon'ble Division Bench answered the issue in negative holding that the revision petition is not maintainable. In this case the order of framing charge has been questioned on its merits and not on any other ground which could be said to be independent of the merits of the case. 10. The case is squarely covered by judgment of Division Bench of this court. This revision petition is held not to be maintainable. 11. In this case the order of framing charge has been questioned on its merits and not on any other ground which could be said to be independent of the merits of the case. 10. The case is squarely covered by judgment of Division Bench of this court. This revision petition is held not to be maintainable. 11. In Rajendra Kumar Sitaram Pande's case the issue before the Hon'ble S.C. was as to whether issuance of process in a complaint is interlocutory order or not. The issue before the Hon'ble Supreme Court was not about the order of framing charge. The judgment of the Hon'ble Supreme Court relied upon by ld. counsel for the petitioner is of no help to ld. counsel in this case as in that case process was issued in the complaint u/s. 204 of the Code of Cr. Procedure (State Act). The said judgment thus does not help the contention of the ld. counsel for the petitioner that the revision petition is maintainable. The judgment of Umadanand Mishra's case in view of the law laid down by this High Court cannot be followed as for this court the judgment has only persuasive value whereas the Division Bench judgment of this court is of binding nature and is to be followed until such time law laid therein is changed by larger bench. 12. The judgment of the Hon'ble Division Bench is to be followed by bench of ld. Single Judge in view of the constitutional scheme and the doctrine of consideration of judgment rendered by ld. Single Judge by bench of two Hon'ble Judges. The judgment rendered by the two Hon'ble Judges constituting Division Bench is a final judgment. Rule 34(2) of the J&K High Court rules is noticed as under:- "(2) a decision of a Division Bench on a appoint of law or usage having the force of law shall be binding a Single Bench. The High Court rules thus also provides that decision of Division bench on a point of law or usage having the force of law shall be binding on the single Bench." 13. In view of above law, enumerated by our own High Court, I am of the considered opinion that this revision petition is not maintainable. The judgment of our own High Court (supra) is based on the judgments of Hon'ble Supreme Court. The judgment cited by petitioner is, thus, not applicable. In view of above law, enumerated by our own High Court, I am of the considered opinion that this revision petition is not maintainable. The judgment of our own High Court (supra) is based on the judgments of Hon'ble Supreme Court. The judgment cited by petitioner is, thus, not applicable. It is not the case of the petitioner, that there is some legal bar created by code of criminal procedure or any other law in conducting the trial of case. Court below has framed charged after appreciating the factual aspects of the case. 14. Hence this petition is dismissed as the same is without merit.