JUDGMENT
C.K. Buch, J.
1. Heard. The Court is informed that the police has now filed charge-sheet. It is prayed for by the petitioner that looking to the nature of injury found on the body of person injured, namely Zahir Abbas, the police was required to register the offence punishable under Sections. 307 and 326 and other Sections of the Indian Penal Code mentioned in the complaint registered with Bavla Police Station. The learned A.P.P., is not sure whether the police has charge-sheeted the accused persons for such offences or whether the accused have been charge-sheeted for the offences punishable under Section 307 and/or 326 of the Indian Penal Code or not.
2. In response to the query raised by the Court, Ms. Saita Raju, learned Counsel appearing for the respondent-accused, has fairly submitted that as per the instructions received by her, the police has not charge-sheeted the accused for the offence punishable under Section 307 and/or 326 of the Indian Penal Code. One copy of the injury certificate produced with the petition vide Annexure-B inter alia reveals the following aspects:
A/H/O. beaten up by opposite party to assault with sickle on the head.
H/O. : LOC to 10/15 min
H/O. : Vomiting 1-2 episode
No H/O. ENT bleeding/convulsion
GCF RS-Clear GCS 15/85 L/E
T : Mes CVS-Cle Lump : BERM
P : 96 P/A : Soft
BP : 110/20
L/S : CLW with # skull on left frontal region.
CLW 1 cm on the dorsal left head.
CT Brain : # left frontal bone.
Rest : NAD
X-ray : Rt hand : No # seen.
Left Hand : No # seen.
Left Foot : No # seen.
Right Foot : No # seen.
Skull : No # seen.
XRL : No c/o #
Inj/(n)
3. The said certificate is issued by Sheth Vadilal Sarabhai General Hospital at Ahmedabad on 2nd September, 2005. Earlier, the Court was informed that the police had not received the medical certificate, and therefore only, formal charge-sheet was not filed. Now, the certificate as to the nature of injuries has been received, and hence, the Investigating Agency shall file charge-sheet after going through the contents of the injury certificate and in the background of the legitimately inferable intention or motive to inflict injuries found on the body of the person injured i.e. Zahir Abbas. It is submitted by Ms. Raju that the petitioner should be relegated to the learned J.M.F.C. with appropriate application and this exercise should be left to the learned Magistrate and no constitutional jurisdiction required to be exercised by this Court.
4. Earlier, when this Court passed order on 25th November, 2005, it was expected that in view of the nature of injuries found on the body of person injured, the police shall apply appropriate Sections. More than one fracture injuries were noticed by the doctor when the injured was examined along with other injuries including fracture of frontal bone skull. The nature of weapon used is also described. It will not be appropriate for this Court to comment upon the arguments advanced by Ms. Raju as to the motive, etc., but in such or similar cases, it is possible for this Court to observe that the Investigating Agency has not remained fair. While submitting report, there was no reason for the police to remain negligent in obtaining medical certificate from the hospital for such a long period. In grave injury cases, the police should take initiative to obtain certificate of injury so that appropriate Sections can be applied, if not applied earlier and the concerned Court can be informed by a supplementary report as to the alteration or addition made in the charge or the offence registered by the police.
5. Sometimes, the nature of injuries are able to unfold many relevant aspects and person accused or important eye-witness including the injured victim can be confronted with their previous-initial stand. When it appears that the element of fairness is missing, this Court can positively exercise jurisdiction vested with the Court and direct the Investigating Agency to see that proper Sections are applied against the accused persons who are to face trial. Sometimes, the application of Sections determines the jurisdiction of the Court as to which Court i.e. Court of Judicial Magistrate, First Class, or the Sessions Court, now shall try the case.
6. So, in view of nature of injuries found on the body of the person injured, it is hereby ordered that the Investigating Agency shall add the offence punishable under Sections 307 and 326 of the Code and the learned J.M.F.C. in turn, shall proceed in accordance with law thereafter. It is true that this is a case wherein the Magisterial Court itself can commit the case to the Court of Sessions by passing orders under Section 209 of the Code of Criminal Procedure, 1973 when the actual offence committed by the accused is graver in nature than charge-sheeted actually without ordering further investigation, if it is otherwise inferable from the papers placed along with the charge-sheet.
7. For short, the present petition is hereby allowed and it is hereby ordered that the Investigating Agency now shall place the report before the concerned learned J.M.F.C. if the accused person has not been charge-sheeted for the offence punishable under Sections. 307 and 326 of the Indian Penal Code. The learned J.M.F.C. is directed to proceed further with the case against the accused with all the offences mentioned in the charge-sheet including the offence punishable under Sections. 307 and 326 of the Indian Penal Code in accordance with law.