JUDGMENT
K.S. Garewal, J.
1. Jasbir Singh was the complainant in this case, who on April 16,1998 lodged the report with ASI Balbir Singh, on the basis of which case under Section 324 read with Section 34 IPC was registered vide FIR No. 27 at Police Station Maur. The occurrence had taken place on April 15 in which Jasbir Singh and his brother Nachattar were attacked by Gurdev Singh and his brothers Naib Singh and Tarsem Singh. Gurdev Singh and Naib Singh were armed with ‘gandasa’ and Tarsem Singh was armed with ‘Phaura’. On Tarsem Singh’s ‘Lalkara’ Naib Singh inflicted a ‘gandasa’ blow on Jasbir Singh’s head leading to both falling down from the bi-cycle, on which they were riding. When Nachattar Singh tried to intervene Gurdev Singh gave a ‘gandasa’ blow on his left hand. Nachattar Singh received another’gandasa’ blow on his head which was given by Gurdev Singh and Naib Singh also hit on his head. Lastly, Tarsem Singh administered a ‘phaura’ blow on Jasbir Singh.
2. Jasbir Singh and Nachattar Singh were medico-legally examined by Dr. Ashwani Kumar. The controversy in this case relates to injuries 3 and 4 on the person of Nachattar Singh which were described as under by Dr. Ashwani Kumar:
“(3) Incised wound directed anter posterialy 6 x 2 cm depth not probed on right parietal area of scalp. Anterior edge of wound is 8.5 rest of above outer carve of right upper eye lid. Bleeding profusely present.
(4) Incised wound 7 x 5 cm. over left occiparital area of scalp 8 cm. above upper bridge of left pinna. Profusely bleeding on scalp.”
3. Dr. Kamal Sharma carried out C.T. Scan on the following day and on the basis of which Dr. Ashwani Kumar declared injury No. 4 to be grievous in nature. Subsequently on April 26 Dr. Ashwani Kumar reported injuries 3 and 4 on the person of Nachattar Singh as “could have proved dangerous to life of injured. The fracture has been detected on left temporal bone vide C.T. Scan report attached along with.” On the basis of this the offences under Sections 307 and 326 IPC were also added and the case was committed to Sessions Judge for trial.
4. The learned Addl. Sessions Judge adopted a novel procedure after the case had been committed by requiring Nachattar Singh to be re-examined by a Board of Specialists constituted by the Chief Medical Officer Bathinda at the instance of the accused. The report of the Board dated September 1, 1998 was that there was no evidence of fracture seen and as such all the four injuries suffered by Nachattar Singh were simple in nature. Consequently, the charge was framed against the accused under Sections 324, 323 and 34 IPC as no prima facie ease was found punishable under Section 307 or 326 IPC, Therefore, after framing the charge the case was sent back to the Chief Judicial Magistrate Bathinda for trial.
5. The order of the learned Addl. Sessions Judge was totally unwarranted as it was based on an inquiry conducted by him at the request of the accused after the case had been committed. The inquiry led to the finding that Nachattar Singh had not suffered any grievous injury. The inquiry report is dated September 1, 1998. It may be noted that the occurrence had taken place on April 15, 1998. All injuries start healing the moment they have been inflicted. In the present case the C.T. Scan report of Dr. Kamal Sharma dated April 16 was made the basis for Dr. Ashwani Kumar to declare injury No. 4 to be grievous and consequently on April 26 Dr. Ashwani Kumar had reported that the injury could prove to be dangerous to life. This medical evidence should not have been allowed to be over-ruled by a Board of Specialists after nearly four and a half months. In all likelihopd the injury and indeed the fractures as well must have undergone healing process and would have completely healed by the time Nachattar Singh was re-examined by the Board.
6. The procedure adopted by the learned Addl. Sessions Judge was totally unfair and prejudicial to the prosecution. The proper option would have been to frame the charge under Sections 307, 326, 324, 323 and 34 IPC and wait for the medical evidence of all the Medical Officers to be recorded and then reach a definite conclusion at the time of the final hearing of the case. To introduce defence evidence even before the charge has been framed and to make this the basis of deciding that the injury was a simple one and sending the case down to the Chief Judicial Magistrate for trial is illegal. The order of the learned Addl. Sessions Judge dated February 3, 1999 is hereby set aside.
7. In view of the fact that the learned Presiding Officer has already expressed his opinion, it would be in the interest of justice that the case is tried by some other Court. Therefore, the Learned Sessions Judge Bathinda may either try the case himself or transfer it to some other Court.
8. Order accordingly.
