Bhupinder Singh vs Harbhajan Singh

Nirmal Singh, J.—This revision is directed against the order of learned 2nd Additional Sessions Judge, Jammu, in case titled 'State v.

Harbhajan Singh', passed on 30.04.2004, whereby, charge under Sections 307 and 323 RPC has been converted into Sections 279 and 377

RPC.

The case of the prosecution is that on 15.10.2003 in the morning, petitioner was coming to Jammu at his own vehicle for domestic work. He

stopped his vehicle at Miran Sahib and when he was standing with one Darshan Kumar Ishar, the respondent/accused came on his vehicle, called

the petitioner and started abusing him without any reason and when the petitioner objected to it, the respondent/accused threatened the petitioner

that he would be done to death and taught a lesson in the way. Respondent/accused left for Jammu. Petitioner also proceeded towards Jammu and

when he reached near Upper Gadi Garh near Telephone Exchange, the petitioner stopped there having some work with Joginder Singh and when

he was talking to Joginder Singh, the respondent/accused came driving his vehicle i.e. car bearing No. 5683/JK02-J at a high speed, hit the

petitioner intentionally and deliberately due to previous enmity and caused injuries to the petitioner and due to injuries, the petitioner became

unconscious and was shifted to Government Medical College, Hospital, Jammu, where he regained conscious.

Originally, the case against the respondent/accused was registered on some information under Sections 279, 337 RPC. During investigation,

statement of the injured was recorded and offences under Sections 307, 323 RPC were added. After investigation, the challan was presented

before the Illaka Magistrate. The case was exclusively triable by the Court of Sessions and the same was committed to the Court of learned

Principal Sessions Judge, Jammu. Learned 2nd Additional Sessions Judge, Jammu, after perusing the material collected on the record,

chargesheeted the accused under Sections 279 and 337 RPC and sent back the file to the Chief Judicial Magistrate, Jammu, for trial in accordance

with law.

Mr. Parmar, learned Counsel for the petitioner submitted that the learned 2nd Additional Sessions Judge, Jammu, has erroneously discharge the

respondent/accused for the offence under Sections 307, 323 RPC. He submitted that from the report submitted u/s 173(2) CrPC alongwith

statements recorded u/s 161 RPC sic (Cr.P.C), prima facie, it shows that there was a case under Sections 307, 323 RPC. He contended that the

learned 2nd Additional Sessions Judge, Jammu, for discharging the accused, has considered the contradictions in the statements of witnesses. He

further contended that these contradictions couldn't be taken into consideration at the time of framing the charge.

On the other hand, Mr. Thapa, learned Counsel appearing for the respondent, at the threshold, raised preliminary objection that the case was

instituted against the respondent on a police report submitted u/s 173(2) CrPC, therefore, the petitioner has no locus standi to file the present

appeal. He contended that it is the duty of the State to file the revision, if, the learned 2nd Additional Sessions Judge, Jammu, committed any

illegality or irregularity. He further submitted that revision can be entertained if a formal permission from the Public Prosecutor has been sought. He

placed reliance on case Kishan Swaroop Vs. Govt. of NCT of Delhi, , that private party has no right to file a case instituted upon a police report.

He further contended that the injuries on the person of the petitioner/complainant were simple in nature, which were results of an accident. He

further contended that there was no intention on the part of respondent to kill the petitioner. He contended that the learned trial Court has rightly

discharged the respondent under Sections 307 and 323 RPC.

I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.

The proposition put forth by the learned Counsel for the respondent that where a case is instituted upon a police report and a private party has a

right to institute the revision, has been considered by his Court in Avtar Singh Vs. Daljit Singh, and it has been held as under:

It may be pointed out that usually the High Court will not act in Revision except on invitation of the one, who is directly affected by the alleged

irregularity or illegality, and the Revision can be dismissed for non-prosecution of the same by a properly authorized person. But the Court may

entertain a criminal revision at the instance of a private party in exceptional and appropriate cases, where the interest of public justice requires

interference. In other words, the private informant has a right to invoke revisional jurisdiction of the High Court in appropriate cases where order of

a Court occasioned greater failure of the justice, at different stages of trial, if grounds for interference in revision are otherwise satisfied. In dealing

with the revisional powers of the High Court vis-'-vis the right of a private party to move any revision against an order passed in a case instituted

upon a police report, the Apex Court observed in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, .

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not

have thought fit to appeal; but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in

the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

In the case in hand, the revision has been filed by the injured. He is the affected party. If the State has not filed the revision, then the revision filed

by the injured is maintainable in view of the law laid down in case titled K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ;

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may

not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is

some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more

incumbent on the High Court to see that it does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial

when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitation on the power of the High Court to set

aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the

criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which

would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no

jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished

to produce, or where the appeal court has wrongly held evidence which was admitted by the trial Court to be admissible, or where material

evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence,

which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High

Court can justifiably interfere with an order of acquittal; and is such a case it is obvious that it cannot be said that the High Court was doing

indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of the High Court

setting aside the order of acquittal in this case can be upheld on these principles.

It is settled proposition of law that at the stage of framing of the charge, the Court has to consider the material with a view to find out, if there is

ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for

purpose of arriving at the conclusion that it is likely to lead to a conviction. In case State of M.P. Vs. S.B. Johari and Others, , it has been held as

under;

It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding

against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or

not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed.

The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted

before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In

such case there would be no sufficient ground for proceeding with the trial.

Section 307 RPC is reads as under:

Attempt to murder. -- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death,

he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be

liable to fine, and, if hut is caused to any person be such act, the offender shall be liable either to imprisonment for life, or to such punishment as is

hereinbefore mentioned. Attempts by life convicts. -- When any person offending under this section is under sentence of imprisonment for life, he

may, if hurt is caused, be punished with death.

Perusal of the above section shows that the accused must do an act with such intention or knowledge and under such circumstances that if he by

that act caused death, that act would have amounted into murder in the normal course of event.

The allegation in this case is that firstly the respondent/accused abused and also threatened the petitioner that he would be done to death and

will be taught a lesson. Subsequently on the same day, the respondent/accused brought car at a high speed, hit intentionally and deliberately with

the petitioner and caused injuries. At this stage, it cannot be said that the respondent/accused had not hit the car with intention to cause death of the

petitioner or the car was hit due to accident. There is a prima facie case for proceeding against the respondent u/s 307 and 323 RPC but the

learned 2nd Addl. Sessions Judge Jammu has erroneously discharged the respondent under Sections 307 and 323 RPC.

For the reasons mentioned above, the order dated 30.04.2004 discharging the respondent accused under Sections 307 and 323 RPC is set

aside. The learned 2nd Additional Sessions Judge, Jammu, is directed to proceed with the case against the respondent/accused u/s 307 read with

Section 323 RPC. If the case file has been sent to the learned Chief Judicial Magistrate, Jammu, the learned 2nd Additional Sessions Judge,

Jammu, shall call the file. Parties are directed to appear before the learned 2nd Additional Sessions Judge, Jammu, on 11th of October, 2005.