IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Revision No. 1603 of 2008
Date of decision : August 04, 2009
Bhim Sain
....Petitioner
versus
State of Haryana and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. NK Sanghi, Advocate, for the petitioner
Mr. Sidharth Sarup, AAG, Haryana
for respondent no. 1
Mr. HS Deol, Advocate, for respondent nos. 2 to 5
L.N. Mittal, J. (Oral)
This is revision petition by complainant Bhim Sain assailing
order dated 17.7.2008, Annexure P/1, passed by learned Additional Sessions
Judge, Sirsa thereby holding that prima facie case for framing charge for
offences under sections 367 and 307 IPC, which are exclusively triable by
Court of Session, is not made out and prima facie case for offences under
sections 323, 324, 325, 326 and 365 IPC is made out for framing of charge
and therefore, case was sent to learned Magistrate for trial as per provisions
of section 228(1)(a) of the Code of Criminal Procedure.
Petitioner filed criminal complaint against respondent nos. 2 to
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5 and others under sections 364, 323, 325, 326, 307 and 148 read with
section 149 IPC. After recording of preliminary evidence, learned
Magistrate refused to summon the accused and dismissed the complaint vide
order dated 29.5.2004. However, in revision petition preferred by the
petitioner-complainant, learned Additional Sessions Judge vide judgment
dated 28.3.2006 found that prima facie case under sections 323, 325, 326
and 367 read with section 34 IPC was made out against respondent nos. 2 to
5 (hereinafter to be referred as ‘accused’). The case was accordingly sent to
the Illaqua Magistrate who vide order dated 6.3.2007 committed the case to
the court of Session. At the time of framing of charge, learned Additional
Sessions Judge, Sirsa vide impugned order dated 17.7.2008, Annexure P/1,
held that prima facie case for the offences under sections 367 and 307 IPC
is not made out. Feeling aggrieved, the petitioner has preferred the instant
revision petition asserting that prima facie charge under sections 367 and
307 IPC is also made out besides other offences.
I have heard learned counsel for the parties and perused the
case file.
According to the prosecution version, on 24.6.2002, the
accused and others caused injuries to petitioner’s father Sheokaran and
abducted him in car and took him to the house of accused Madan Mohan
where also danda blows were inflicted to Sheokaran who became
unconsious and was thrown out.
Learned counsel for the petitioner vehemently contended that
Sheokaran suffered as many as ten injuries out of which eight injuries are
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grievous in nature and therefore, prima facie case under sections 367 and
307 IPC is made out. On the other hand, learned counsel for the accused
contended that the accused were not even summoned for offence under
section 307 IPC nor any prima facie case for the said offence was found in
judgment dated 28.3.2006 by learned Additional Sessions Judge. It is also
contended that offence under section 367 IPC is also not made out because
the said offence would be attracted if grievous hurt is caused after abduction
whereas in the instant case, grievous hurt had been caused before abduction.
I have carefully considered the rival contentions.
Learned Additional Sessions Judge in the impugned order dated
17.7.2008, Annexure P/1 has dissected and analysed the preliminary
evidence as if he was deciding the case finally whereas the case was being
dealt with only at the stage of framing of charge to find out as to prima facie
case for framing of charge for what offence is made out. The evidence was
not required to be scrutinized in such detail at the stage of framing of
charge, as has been done by learned Additional Sessions Judge.
The rival contentions raised by learned counsel for the parties
need not detain me for long. As noticed hereinabove, the learned
Additional Sessions Judge, in revision petition against dismissal of the
complaint, found vide judgment dated 28.3.2006 that prima facie case for
offences under sections 323, 325, 326, 367 read with section 34 IPC was
made out. The accused challenged the said judgment dated 28.3.2006 of
learned Additional Sessions Judge, Sirsa by way of Criminal Revision No.
1093 of 2006 in this Court. The said revision petition was dismissed by
this Court vide order dated 25.5.2006, as reproduced at page Nos. 10 and 11
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of the instant petition. It was, inter-alia, observed that the finding of
Additional Sessions Judge that preliminary evidence prima facie discloses
the commission of alleged offences by the petitioners (accused persons) has
been rightly recorded. It, thus, emerges that after hearing the counsel for
the accused in the aforesaid revision petition, this Court endorsed prima
facie finding that offences under sections 323, 325, 326 and 367 read with
section 34 IPC are made out. No new material came on record thereafter
for learned Additional Sessions Judge to hold in the impugned order dated
17.7.2008, Annexure P/1, that prima facie case under section 367 IPC was
not made out. In addition thereto, as per prosecution version some injuries
were caused to Sheokaran before abduction but some other injuries were
also caused to him after abduction. For this reason as well, prima facie case
for framing charge under section 367 IPC is also made out against the
accused.
The petitioner’s contention that prima facie case under section
307 IPC is also made out, cannot be accepted for the simple reason that the
petitioner never challenged judgment dated 28.3.2006 of learned Additional
Sessions Judge, wherein prima facie case for offence under section 307 IPC
was not held to be made out. Nor the accused were summoned to face trial
for the said offence.
In view of the aforesaid, the revision petition is allowed partly
and impugned order of learned Additional Sessions Judge, Sirsa dated
17.7.2008, Annexure P/1, is set aside and it is held that prima facie case for
framing charge against the accused (respondent nos. 2 to 5) for offences
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under sections 323, 325, 326, 367 read with section 34 IPC is made out.
The case is accordingly remanded to learned Additional Sessions Judge,
Sirsa for trial of the accused in accordance with law for the aforesaid
offences after framing charge for the said offences.
Nothing observed hereinabove shall have any bearing on the
final decision of the case.
( L.N. Mittal )
August 04, 2009 Judge
'dalbir'