Uttarakhand High Court
Pradeep Paliwal And Others ..... ... vs State Of Uttarakhand And Another on 13 January, 2023
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.2361 of 2022
Pradeep Paliwal and Others ..... Applicants
Versus
State of Uttarakhand and Another ...... Respondents
Present:- Mr. Pankaj Miglani, Advocate for the applicants.
Mr. A.K. Sah, learned Deputy Advocate General along with Ms.
Mamta Joshi, learned Brief Holder for the State.
Hon'ble Ravindra Maithani, J.
The challenge in this petition is made to the followings:-
(i) Order dated 15.10.2019, passed in Criminal Case No. 502 of 2017, State Vs. Sanjay Paliwal and others, by the court of Judicial Magistrate 3rd , Haridwar ("the case"). By it, on a discharge application filed by the petitioners, the court held that there are sufficient grounds to frame charge for the offences punishable under Sections 323, 325, 427 IPC against the petitioners but they have been discharged of the offences under Sections 147, 148 IPC and;
(ii) Judgment and order dated 07.12.2022, passed in Criminal Revision No.636 of 2019, Sanjay Paliwal and Others Vs. State of Uttarakhand and Another, by the court of 3rd Additional Sessions Judge, Haridwar. 2 By it, order dated 15.10.2022 passed in the case has been upheld.
2. Heard learned counsel for the parties and perused the record.
3. It appears that the private respondent filed an FIR on 05.07.2003 against the petitioners. According to the FIR, on 05.07.2003 at about 1:30 P.M., the petitioners attacked the private respondents, his worker Jakir, Gajraj and Pradeep, due to which they sustained serious injuries, which is basis of FIR No.246A of 2003, under Sections 147, 148, 323, 427 IPC at Police Station Jwalapur, District Haridwar.
4. After investigation in this matter, final report was submitted. On a protest petition, cognizance was taken. At the stage of framing of charges, an application to discharge was moved by the petitioners on the ground that neither X-ray film nor opinion of radiologist is on record. Therefore, there are no grounds to frame the charge under Section 325 IPC. There have been other averments also in the discharge application.
5. After hearing the parties, by the impugned order passed in the case, as stated, the Court though discharged the petitioners for the offences under Sections 147 and 148 IPC, but held that there are sufficient grounds to frame the 3 charges against the petitioners for the offences punishable under Section 323, 325 and 427 IPC. This order has unsuccessfully been challenged in the appeal.
6. Learned counsel for the petitioners would submit that there has been no reason to frame the charge under Section 325 IPC. It is argued that neither X-ray film nor radiologist report is on record. It is argued that, in fact, the petitioners sought information from the Primary Health Centre, Jwalapur with regard to X-ray machine on the relevant date. This information was sought under the Right to Informant Act, 2005 and it was revealed that, at the relevant time, at Primary Health Centre, Jwalapur, there was no X-ray machine.
7. It is the stage of the charge. The consideration at the stage of framing of charge are different than the consideration that weigh in the mind of the Court at the final stage of a trial. At this stage, the material is examined not to the extent of determining as to whether the material proves the case beyond reasonable doubt. Instant is a case based on police report.
8. In such matters, after perusing the police report and the document sent with it, if the Magistrate considers that the charge against the accused to be groundless, he shall record an order of discharge. It is so provided under 4 Section 239 of the Code of Criminal Procedure, 1973. This section is as hereunder:-
"239. When accused shall be discharged.--If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing"
9. What is to be seen is that there are grounds to proceed further. If the charge is groundless, an order of discharge would be passed.
10. In the instant case, reference has been made to an information supplied by the Primary Health Centre, Jwalapur that there was no X-ray machine at the relevant time. But, in any case, it does not mean that the Doctor posted at the Health Centre cannot give a report with regard to any fracture. There are various questions that might crop up during the trial. Where was X-ray done? Has the X-ray been done at some other place than the Primary Health Centre Jwalapur? Who conducted the X-ray? Where is the X-ray report? Perhaps, if an application is given during trial, the Court may summon such documents. This Court cannot speculate all those steps that might be taken during the course of trial.
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11. There is a supplementary medical report, which states that Gajraj has a fracture. Witnesses have stated about the incident. The Court below has rightly concluded that there are sufficient grounds to frame charge under Sections 323, 325 and 427 IPC. The material which has been placed before the Court does not show that the charge under Section 325 IPC is groundless. Therefore, there is no reason to make any interference in the instant petition. Accordingly, the petition deserves to be dismissed at the admission stage.
12. The petition is dismissed in limine.
(Ravindra Maithani, J.) 13.01.2023 Sukhbant