ORDER
L.S. Mehta, J.
1. The prosecution story is that the accused Ramanlal bore enmity against Prakash Chandra Bansal of village Bhuswawar, District Bharatpur. On February 17, 1966. Ramanlal and his son Brahamanand caused injuries on the head of Prakash Chandra with a ‘Pharsi’ and a ‘Tanchia’ respectively. Haricharan, P. W. 3, and Kaila Prasad alias Natar, P. W. 1, witnessed the occurrence. Prakash Chandra was medically examined on the date of the incident at about 6.45 p.m. by Dr. Anant Narain Sharma, P. W. 6, Medical Officer, Bayana. Following injuries were found on his person:–
1. Lacerated wound with contused edges and edima all round 2″x 1/4″x 1/2″ on right side of scalp half an inch anterior to right parietal eminence obliquely;
2. Lacerated wound with contused edges and surrounding edima exposing skull bone in all its length 1 3/4 x 1/2″ x 3/4″ on left side of scalp obliquely from left parietal eminence medially and backwards.
Both the Injuries were caused with a blunt object and were simple in nature. The Doctor was further of the opinion that had the patient not been attended In time medically, it was possible that the Injuries might have proved dangerous to life. First information report of the occurrence was lodged with the police station. Bhusawar, by Ramjilal on February 18, 1966. The police, after investigation, submitted a challan against Brahamanand under Sections 307 and 323, I. P. C., in the Court of Additional Munsiff-Magistrate, Bayana. It did not put any charge-sheet against Ramanlal. The Additional Munsiff-Magistrate. took cognizance of the offences against Ramanlal under Section 190, Criminal P. C., on July 9, 1966. On the prosecution evidence having been closed, the trial Court, after hearing the arguments of both the sides, reached the conclusion, on September 27, 1968, that no prima facie case was made out against the accused persons under Section 307, I. P. C. and that the accused should be charged for voluntarily causing simple hurt to Prakash Chandra under Section 323, I. P. C., triable by himself.
That order was assailed in the Court of the sessions Judge, Bharatpur, through a revision application filed on behalf of Ramjilal, It was submitted to the learned Sessions Judge, that a prima facie case had been made out against the accused persons under Section 307, I. P. C., and that the Additional Munsiff- Magistrate went wrong in not committing the accused to the Court of the Sessions Judge for trial under that section. Learned Sessions Judge. Bharatpur, by his judgment, dated April 26, 1969, set aside the order of learned Additional Munsiff-Magistrate, Bayana, dated September 27, 1968, and directed that Court to commit the accused persons to face trial under Section 307, I. P. C.
2. Aggrieved against the above order, the accused Brahamanand and Ramanlal have filed this revision petition. Argument of the learned counsel for the petitioners is that the Sessions Judge, Bharatpur, committed a serious mistake of law and fact in setting aside the order of discharge for offence under Section 307
I. P. C, and directing the case to be committed to his Court. Learned counsel has
further argued that from the evidence on
the record the ingredients of Section 307,
I. P. C., are not made out, there being no
evidence to suggest that the injuries were
caused with the intention to cause death.
The medical report disclosed that the in
juries caused were simple and that they
were inflicted with blunt objects. The
medical opinion given by Dr. Anant Narain
Sharma is in conflict with the version of
the eye-witnesses, who have stated that
the injuries were caused with sharp-edged
weapons.
In the end, it was submitted that the order of learned Sessions Judge, Bharat-pur, dated April 26, 1969, setting aside the order of discharge made by the Additional Munsiff-Magistrate, Bayana, be quashed. Learned counsel for the side opposite vehemently argued that a case under Section 307. I. P. C., is clearly made out against the accused persons. His further contention is that the Magistrate had no jurisdiction to hold that an offence under Section 307, I. P. C., is not made out against the accused and that he was not competent to try the case for an offence under Section 323, I. P. C., only. According to learned counsel if no prime facie case was made out against the accused, the Magistrate could have totally discharged the accused on all counts. He could not have clutched at the jurisdiction of the Court of session by ordering that he would try the case for a minor offence.
3. According to P. W. 1 Kaila Prasad, Ramanlal had a ‘Pharsi’ with him and Brahamanand was armed with a ‘Tanchia’. Both of them assaulted Prakash Chandra Bansal with their respective weapons. Raman’s weapon first struck against the shutters of the door and then it fell on the scalp of Prakash Chandra, with the result that he sustained injuries. Almost to the same effect are the statements of Prakash Chandra P. W 2, and Haricharan, P. W. 3. Haricharan has pointedly said that the injuries sustained by Prakash Chandra were caused with sharp edged weapons. Dr. Anant Narain Sharma, Medical Officer, Bayana, P. W. 6 has categorically deposed that the injuries caused to the victim were simple in nature and were the result of the impact of a blunt object. In the first information report filed by Ramjilal, on February 18, 1966, at 10.15 a.m., at the police station, Bhusawar, it is given that both the accused caused injuries with a ‘pharsi’ and a ‘Tanchia’.
It is not mentioned therein that the Injuries were caused with blunt objects. P. W. 4 Dal Chand, on the other hand, has said that Brahamanand hit Prakash Chandra with a hockey-stick and then he went away and that none else beat Prakash Chandra in his presence. He has further said that Ramanlal was not present at the time of the occurrence. From the evidence discussed above it is plain that two types of versions have been made by the witnesses. Some of the witnesses have stated that the injuries were caused with a ‘Pharsi’ and ‘Tanchia’. The other set of evidence suggests that the injuries were caused with a blunt object, i.e., with a hockey stick.
4. The burden is upon the prosecution to establish that the intention of the accused in causing the particular injury to the victim was of any of the three kinds mentioned in Section 300, I. P. C.; unless the prosecution prima facie discharges that burden, offence under Section 307, I. P. C. cannot possibly be brought home to the accused. The state of mind of the accused has to be deduced from the surrounding circumstances and the existence of a motive to cause the death of Prakash Chandra is a relevant circumstance. It is in the prosecution evidence that before the shop of Haricharan grosser in the market of Bhusawar Prakash Chandra was asked by Ramanlal and Brahamanand as to why he had inquired about the date of birth of Ramanlal’s second son, Fatenchand, from the school, Prakash Chandra said that as he had received a complaint that Fatechand was going to be married as a minor and that he wanted to print the news in his paper, he ascertained his date of birth.
This story, even if believed to be true, cannot be said to be so serious so as to provoke the accused to the extent of putting an end to the life of Prakash Chandra. Under the circumstances, it cannot be said that the motive to cause murder or to cause an injury which may result in death could be ascertained from the evidence on the record. If such was the intention of the accused, they would not have inflicted injuries with the intention to kill their victim in the open market, a well-frequented area and in the broad day light. It is not so easy to assume that in such circumstances the accused could have intended to cause a crime for which the law provides capital punishment: vide Sarju Prasad v. State of Bihar, AIR 1965 SC 843.
5. For the application of Section 307, I. P. C., it is not necessary that the injury capable of causing death should have been actually inflicted. Whoever does an act with such intention or knowledge and under such circumstances that, if he by that act caused death he would be guilty of murder, is liable to punishment under Section 307, I. P. C. If the injury is actually caused, its nature may afford assistance in arriving at the conclusion whether the accused had the intention of causing the death of the victim: vide Wazira v. Emperor, AIR 1940 All 113. If the
surrounding circumstances make no contribution to the proof of intention or knowledge, it can be inferred only from the naure of the act itself. In such a case the accused must be presumed to intend only the natural consequences of the act: see Provincial Government v. Abdul Rehman, AIR 1943 Nag 145. In this connection, the following observation of their Lordships of the Privy council, made in Mahadeo v. R., 1936-2 All ER 813 will also serve as a useful guide:
“It never could be maintained that where the evidence for the prosecution points affirmatively no further than manslaughter, the law would enlarge the proof and transform the case into one presumptively of murder.”
6. In this case on the material available on the record there is hardly any possibility that the conviction of the accused can be sustained under Section 307, I. P. C, If the intention of the accused, who were alleged to be armed with weapons, was to cause the death of Prakash Chandra, they could have inflicted far more serious Injuries than what they actually did. Every Injury on the head cannot be considered capable of causing death, nor does every blow on the head with a blunt object can be deemed to be fatal Here, from the conduct of the assailants, it cannot be Inferred that they had the requisite intention of causing the death of Prakash Chandra. Learned Additional Munsiff-Magistrate was right in holding that the liability of the accused must be limited to the act which they in fact did and should not be extended so as to embrace consequences of another act, which they might have done, but did not. For these reasons, it cannot be said that a prima facie case for attempt to commit murder is made out against the accused.
7. It is a settled law that the Magistrate holding a preliminary inquiry has to satisfy himself that a prima facie case is made out against the accused by the evidence of witnesses, entitled to a reasonable degree of credit, and unless he Is so satisfied, he has not to make any commitment order: vide Ramgopal Ganpatrai Ruia v. State of Bombay, AIR 1958 SC 97. The law in England also appears to be the same. In Halsbury’s Laws of England, Vol. 10, 3rd Edn., Article 666, page 365. the law has been stated like this:
“When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether the accused is or is not to be committed for trial.”
A Magistrate inquiring into a case under Section 209. Criminal P. C., is not to act as a post-office. He has to arrive at a conclusion whether or not a case before him is fit one for commitment. It is no doubt true that it is none of the business of the Magistrate to weigh pros and cons of the prosecution and the defence version and to discharge the accused merely because in his view the defence evidence is better than the prosecution: vide K. P. Raghawan v. M. H. Abbas, AIR 1967 SC 740. Nevertheless it is a well-established principle that the Magistrate has to be satisfied whether or not a prima facie case is made out against the accused by the evidence of witnesses.
8. Now, the question remains: whether It is within the competence of the Magistrate to refuse to commit the accused for a major offence and try the case himself for a minor offence. Sub-section (6) of Section 207-A, Criminal P. C., reads as follows:–
“When the evidence referred to in Subsection (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case, he shall proceed accordingly.”
According to the above Sub-section when necessary evidence has been taken under Sub-section (4) of Section 207-A, Criminal P. C., and the Magistrate has considered all the documents referred to in Section 173, Criminal Procedure Code, and when the Magistrate has. If necessary, examined the accused and found that the evidence and the documents disclose no grounds for committing the accused for trial, he must discharge the accused, but in suitable cases he can arrive at the conclusion that the accused should be tried by himself or some other Magistrate, and in which case he must proceed accordingly.
9. Section 209 (1), Criminal P. C, is in the terms following :–
“When accused person to be discharged.–(1) When the evidence referred to in Section 208, Sub-sections (1) and (3), has been taken and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.”
In this section, the words “unless it appears ….. proceed accordingly.” indicate that where there are not sufficient grounds for commitment, the Magistrate may, in proper cases, try the case himself or send it to any other Magistrate for trial instead of discharging the accused. In this connection a reference is made to In re Nalla Baligadu, AIR 1953 Mad 801 (FB). In that case it has been observed by the Full Bench of the Madras High Court that all that the section lays down is that if the Magistrate finds that there are no sufficient grounds to commit the accused for trial, he will exonerate him, and send him away from the court, but is not bound to do so, if he decides that the accused be tried before himself or some other Magistrate. This Full Bench decision of the Madras High Court has been approved by their Lordships of the Supreme Court in Ram-ekbal v. Madan Mohan, AIR 1967 SC 1156. However, where there are grounds for commitment, the Magistrate is bound to frame a charge and commit the accused to the court of Session and he cannot treat the grave offence a less serious one in order to bring the case within his jurisdiction. If he does that, his order is liable to be set aside under Section 437, Cr. P. C. In support of this proposition, it will be useful to cite Thakur Ram v. State of Bihar, AIR 1966 SC 911. It is explicitly mentioned by their Lordships of the Supreme Court in para No. 7 of the judgment that:–
“When a case Is brought before a Magistrate in respect of an offence exclusively or appropriately triable by a court of Session, what the Magistrate has to be satisfied about is whether the material placed before him makes out an offence which can be tried only by the court of Session, or can be appropriately tried by that court or whether it makes out an offence which he can try or whether it does not make out any offence at all.”
From this observation, it is manifest that if the Magistrate feels that the case is such which can be tried by himself and not by the court of Session, though a police challan has been made in respect of a graver offence triable by the court of Session, the offence can be tried by the Magistrate himself. Where two views are possible about the evidence in a case before the Magistrate, it is not for the Magistrate to evaluate the evidence and then arrive at the conclusion whether or not the case should be committed to the court of Session, and under such circumstances if the Magistrate proceeds to try the case with a view that the evidence found acceptable by him only the minor offence is made out, it would certainly amount to an encroachment upon the jurisdiction of the appropriate court. But that does not mean that even if no prima facie case is made out for a graver offence, the Magistrate is duty bound to commit the accused to the court of Session. AIR 1967 SC 1156 quoted supra, affords a valuable guidance on the matter in issue: In para 6 of the judgment it is mentioned:
“If in the opinion of the Magistrate there is no evidence to warrant a charge for an offence exclusively triable by a court of Session, he may ‘discharge’ the accused in respect of the alleged offence and, having done so, may proceed as regards the minor offence or offences under Chapter XXI or other appropriate chapter. In fact, the Magistrate cannot proceed to act under the latter part of Subsection (1) of Section 309 until he has discharged the accused under the former part of the sub-section.”
From this observation, it is plain that a Magistrate is within his jurisdiction to proceed with the case, if he finds that a minor offence or offences falling under Chapter XXI is prima facie made out. In this view of the matter, there is nothing wrong in the order of the Magistrate to the effect that he was competent to try the case in respect of a minor offence.
10. Learned counsel for the side opposite drew my attention to a recent decision of the Kerala High Court in T. J. Kurian v. The State of Kerala. AIR 1966 Ker 911. In that case it has been observed that Sub-section (1) of Section 209, Cr. P. C., does not provide that the Magistrate may discharge the accused person regarding some of the offences and then try him for the other offences or send him for trial for the other offences before a competent Magistrate. With the greatest respect to the learned Judge of the Kerala High Court, I am in respectful disagreement with the proposition laid down therein. Under Section 209, Cr. P. C., as mentioned above, if in the opinion of the Magistrate there is no evidence to warrant a charge for an offence exclusively triable by a court of Session, he is entitled to discharge the accused and may at the same time proceed with the trial in respect, of a minor offence under Chapter XXI or other appropriate chapter.
11. There is another aspect of the case which merits consideration at this stage. The police station, Bhusawar, after conducting investigation put up a challan in the court of the Additional Munsiff-Magistrate, Bayana, against the accused Brahamanand and Ramanlal for offences under Sections 307, 326 and 323, I.P.C. The Magistrate by his order, dated September 27, 1968 held that no prima facie case was made out against the accused under Section 307, I.P.C,, and that only a case under Section 323, I.P.C., was prima facie established. Against that order a revision-application was filed by
Ramjilal in the Court of the Sessions Judge, Bharatpur, on October 25, 1968. Where a case proceeds on a police report, a private party has no locus standi. It is correct that the provisions of Section 435, Cr. P. C., are wide enough, but the criminal law is not to be used as an instrument to wreck private vengeance.
Barring a few exceptions, in criminal matters the party who is treated as an aggrieved party is the State, which is the ultimate custodian of the social interests of the community at large. It is, therefore, for the State to take requisite steps for bringing the accused persons to book: see AIR 1966 SC 911. In this case the State did not feel aggrieved against the order of the Magistrate and hence it did not move any revision petition against it. This aspect of the matter was not kept in view by learned Sessions Judge, Bharatpur.
12. For the foregoing reasons, I accept the revision-petition, set aside the order dated April 26, 1969 of the Sessions Judge, Bharatpur, and restore the order of the Additional Munsiff-Magistrate, Bayana, dated September 27, 1968.
