Madhya Pradesh High Court
Raju Sahu vs The State Of Madhya Pradesh on 8 February, 2019
1 Cr.R. No. 4076/2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE SHRI VISHNU PRATAP SINGH
CHAUHAN
CR.R. NO. 4076/2018
Raju Sahu and Others
Vs.
State of Madhya Pradesh
Shri S.K. Tiwari, learned counsel for the applicants.
Shri Santosh Yadav, learned Panel Lawyer for the
respondent/State.
ORDER
( .02.2019) The applicants have filed this Criminal Revision under Section 397/401 of the Cr.P.C. being aggrieved by the order dated 24.07.2018 passed by the 12 th Additional Sessions Judge, Jabalpur in S.T. No. 280/2018 whereby learned Judge has framed the charges against the applicants under Sections 294, 506-II, 323, 326/34 of the IPC.
2 Cr.R. No. 4076/2016
2. Brief facts of the case are that FIR has been lodged by the Ajay Pandey @ Bablu against the applicants which was registered as Crime No. 78/2018 for the offence punishable under Sections 294, 323, 324, 506 read with Section 34 of the IPC. After investigation charge sheet has been filed under Section 173 of the Cr.P.C. Learned Sessions Court after hearing both the parties framed the charges vide impugned order dated 24.07.2018 for the offence punishable under Sections 294, 506-II, 323, 326/34 of the IPC against the applicants. In this revision, the applicants aggrieved by the only charge framed under Section 326 and 326/34 of the IPC.
3. Learned counsel for the applicants submits that no grievous injury has been found to the complainant in spite of that learned Sessions Judge framed a charge under Section 326 of the IPC, therefore, prays for conversion of the charge framed against the applicants under Sections 326 and 326/34 of the IPC into either under Section 324 or 323 of the IPC.
4. Learned Panel Lawyer for the respondent/State 3 Cr.R. No. 4076/2016 submits that in the C.T. Scan report, doctor opined that there was a fracture in the Occipital Bone of the head, on that basis grievous injury has been found in the head of the victim. On that basis, learned trial Court has rightly framed the charge under Section 326 of the IPC.
5. After hearing learned counsel for the parties and on perusal of the documents filed along with the revision, I found that the weapon used during the incident was an Iron Rod. Raju Sahu inflicted one Iron Rod blow on the head of the victim. Doctor mentioned a patient condition in the MLC report and referred the victim to the Neurology department and also advised for the C.T. Scan of the head. Learned counsel for the applicants submits that if it is found that patient sustained grievous injury, weapon used during brawl is hard and blunt object, in spite of this, ingredients of 326 is not prima facie, found.
6. The question before this Court whether the conversion of charge of the major offence into the minor offence is an interlocutory order or not. If it is an interlocutory order, Court cannot invoked the revisional 4 Cr.R. No. 4076/2016 powers given under Section 397/401 of the Cr.P.C. because there is a rider given under Section 397(2) of the Cr.P.C. Learned counsel for the applicant relied on the order passed by this Court in Cr.R. No. 1754/2016 (Manik Rao Yavle Vs. The State of Madhya Pradesh), dated 05.08.2016, in the case of Brahmanand @ Brahmajeet Singh Vs. State of M.P., 2013(III) MPWN 76 and in the case of Nawab Khan Vs. State of M.P. and others, 2015(2) MPHT 159. In all three cases learned co-ordinate Bench of this Court while invoking the revisional jurisdiction considered the fact that the charge of the major offence can be covert into the charge of minor offence, but, in above mentioned case law Hon'ble Court did not considered the previous order of this Court passed in the case of Khagesh Kumar Goel Vs. State of Madhya Pradesh and others, reported in 1998 CRI.L.J. 776 para 13 and 14 are relevant which reads as under:-
13. The other case is, where according to the material on record, there is ground for presuming that the accused committed a particular offence and the charge is framed. The plea of the accused is that on the basis of material on record that charge could not be framed, but a minor or other charge is made out and this plea is repelled 5 Cr.R. No. 4076/2016 by the Court and the charge is framed. Such an order of framing charge to my mind is certainly an interlocutory order. The reason is that if the plea of the accused that a minor or other charge is made out is accepted it will not put an end to the matter and the accused has still to be tried on the charge which can be framed according to him. It will be open to him to show at proper time that on the material on record the offence made out is minor offence. A contention has been raised to the effect that it may be said that the accused stands discharged with reference to the major offence and as such it puts an end to that content. This to my mind is not correct. The accused can be discharged only as proceeded under Section 227.
There cannot be an order of discharge if there is a ground to proceed against the accused, even if a minor charge is made out from material on record. In case a minor charge is made out even then the order of framing charge by the Court cannot be said to be a final order as it does not put an end to the controversy. It is certainly an interlocutory order because trial has to continue with respect to the minor charge claimed by the accused.
14. I, therefore, conclude that the order passed at the time of framing the charge negativing the plea of the accused that no charge is made out and he is entitled to be discharged is not an interlocutory order and revision petition is maintainable and such an order is not hit by the provisions of S. 397(2), Cr.P.C. On the other hand if the plea of the accused is that a minor charge is made out instead of charge framed by the order of framing charge, such an order is certainly an interlocutory order and the revision petition against such an order is not maintainable and is hit by provisions of Section 397(2), Cr.P.C. This aspect has not been considered in the authorities of Bombay High Court cited by learned counsel or in the Single Judge authority of this Court. As such, these authorities do not help the learned counsel to show that every order of framing of charge is revisable. In the cases in hand the plea of the accused was that there was no material on record against the accused-petitioner and no charge could be framed against him. In other words it means that the petitioner claimed to be discharged. If this plea had been accpeted by the Court below it would have put an end to the trial of the petitioner. This order to my mind, in view of what has been stated above is not hit by provisions of Section 397(2), Cr.P.C. The preliminary objection is, therefore, repelled and it is held that 6 Cr.R. No. 4076/2016 the revision petitions are maintainable. They are accordingly admitted.
In this case, the Court after discussing the case law of the Apex Court opined that if any person is discharged after considering the fact of the charge framed against him and that order finally adjudicated the right of the person, the same cannot be categorized in the interlocutory order. But change of the ingredients of the higher offence into ingredients of the offence of low gravity of the offence, not decided the rights of the persons finally. On that account such type of order is interlocutory order. Khagesh Kumar Goel (Supra) case law has not been discussed in the aforementioned case laws. The opinion given in that case law [Khagesh Kumar Goel (Supra)] is applicable to this case also.
7. Considering the view taken in the case law of Khagesh Kumar Goel (supra), this Court is of the opinion that the impugned order is squarely covers under the interlocutory order. There is a rider under Section 397(2) of the Cr.P.C. to invoked the revisional power under 7 Cr.R. No. 4076/2016 Section 397(1) of the Cr.P.C.
8. Accordingly, the revision petition is not maintainable and is hereby dismissed with no order as to costs.
(Vishnu Pratap Singh Chauhan) Judge ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2019.02.08 16:59:52 +05'30'