Punjab-Haryana High Court
Bhim Sain vs State Of Haryana And Others on 4 August, 2009
Author: L.N. Mittal
Bench: L.N. Mittal
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 Criminal Revision No. 1603 of 2008 -2- 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 Criminal Revision No. 1603 of 2008 -3- 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 Criminal Revision No. 1603 of 2008 -4- 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 Criminal Revision No. 1603 of 2008 -5- 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'