Jamil Ahmed vs Hanif and others

V.S. Aggarwal, J.

This is a revision petition filed by Jamil Ahmed and another (hereinafter described as the petitioners) directed against the order passed by the Additional Chief Judicial Magistrate, Jagadhri dated 13.9.1994. By virtue of the impugned order, the learned trial Court concluded that prima facie offence punishable under section 307, I.P.C. is not made out.

It has been pointed out that the complainants are owners in possession of land measuring about one acre and a marla near village abadi. The village panchayat wants to forcibly occupy that land. An order has been passed by the High Court of Punjab and Haryana in favour of the applicants and it had been served on the panchayat. Despite this the panchayat had tried to trespass into the land and contempt proceedings have been initiated on 5.11.1992. On the fateful day, another attempt was also made to trespass into the land. Lal Deen and Jamil tried to impress upon the accused not to trespass into the land. They paid no heed. They shouted that whosoever would come forward would not be spared. Rasid Mohmad son of Jandu attacked Lal Deen with his gandasi and gave two or three blows on the head of Lal Deen. Meenu and Noora also gave lathi blows to Lal Deen. Ali Mohamad gave gandasi blow on the head of Jamil Ahmad. Hanifa, Satar and Shanti Lal also gave lathi blows to Jamil Ahmad. Lal Deen and Jamil had fallen on the ground. Furthermore, it is asserted that Gafoor gave lathi blows while Salamoo accused gave lathi blows to the injured. On hearing the noise, Noor Mohmad and Alizan reached the spot. On seeing them, the assailants left the spot.

The learned Additional Chief Judicial Magistrate on an appraisal of the facts came to the conclusion that though at the initial stage elaborate enquiry in shifting and weighing the evidence has not to be made, but still in the opinion of the learned Additional Chief Judicial Magistrate, only an offence under Section 307, IPC was not attracted.

Aggrieved by the said order, the present revision petition has been filed.

As is apparent from the narration of the facts, the limited question that comes up for consideration is as to if the Additional Chief Judicial Magistrate was justified in concluding that provisions of section 307, IPC are not attracted in the facts of the case.

Section 209 Cr.P.C. runs as under :

"209. Commitment of case to Court of Session when offence is triable exclusively by it :

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall

(a) commit, after complying with the provisions of section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any which are to be produced in evidence

(d) notify the public prosecutor of the commitment of the case of the Court of Session."

The provisions referred to above leave no doubts that when a case is instituted on a police report, it would be committed to the Court of Session, only if it appears to the Magistrate that the offence is triable exclusively by the Court of Session. In other words, if it appears to the Magistrate, that an offence is not triable exclusively by the Court of Session, then he need not commit the same to the said Court. The expression :

"It appears to the Magistrate is clear and unambiguous. The learned Magistrate has to apply his mind to the narration of facts and whatever material is available on record. He cannot be treated merely as a Post Office and commit the case to the Court of Sessions on receipt of the police report after complying with the other procedural formalities. It is true that detailed scrutiny will be admissible but at the same time, when the Magistrate finds from the material on the record and formulated a prima facie view, in that event he has the right to come to a conclusion otherwise."

Reference in this connection to certain precedents on the subject will be advantageous. In the case of State v. Jai Ram and another, 1976 Crl. L.J. 42, considering a similar question, the Delhi High Court returned the following findings :

"On a study of the various relevant provisions my view is that under section 209 of the Code the Magistrate is only to examine the police report and other documents mentioned in section 207 and find out whether the facts stated in the report make out an offence triable exclusively by the Court of Session. Once he reaches the conclusion that the facts alleged in the report make out an offence triable exclusively by a Court of Session he is to do no more and commit the case to the Court of Session. In forming the above opinion the Magistrate is not to weigh the evidence and the probabilities in the case. He is not required to hear the accused. In other words he is not to hold an enquiry."

The same view prevailed with the Karnataka High Court in the case of The State of Karnataka v. Shakthi Velu, 1978 Crl.L.J, 1238 and also in the case of Dr. Dattatraya Samant and etc., v. State of Maharashtra, 1981 Crl. Law Journal 1819. Consequently, if the learned Additional Chief Judicial Magistrate had thought it appropriate and he did apply his judicial mind, it is more to be appreciated than deprecated.

The learned counsel for the petitioner urged vehemently that in the peculiar facts of the case, it should have been held that provisions of section 307, IPC would be attracted and case should have been committed to the Court of Sessions. Section 307, IPC unfolds itself in the following, words

"307. 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 extend to ten years and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.

Attempts by lifeconvicts. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

Indeed it depends upon the facts and circumstances of each case whether the accused had the intention to cause death or know the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and the size of the injuries, the severity of the blows are important factors. The burden always is on the prosecution to prove, first the actus rues that is the accused had done something which in point of law marked the commission of the offence and second, in taking this step be was inspired by the intention to reach the definite objective.

The facts of the present case can be considered in this background. It is not being disputed that the injured were examined and at the request of the petitioners even a Board was constituted. The Board comprised of three doctors. They opined that injuries received were simple in nature. As pointed out above and rementioned at the risk of repetition, even if injuries are simple in a given set of facts, an offence under section 307, IPC can be attracted but prima facie it should be possible to arrive at a conclusion that accused persons had the intention to cause the death. Unless the intention is available, provisions of section 307, IPC will not be attracted. The facts of the present case do not make one to infer or to take a different view from that of the learned trial court that there was a little material to conclude that such an intention can be inferred on the part of the respondentaccused.

My attention was drawn to the exhortation that it had been shouted. That whatsoever comes forward, he would not be spared. However, this exhortation by itself will permit not one to take the view that the intention was to cause the death of the injured. This is a common call attributed but not enough in the facts of the present case when simple injuries were caused to conclude that provisions of section 307, IPC would be attracted.

Consequently, I find no reason to interfere in the order passed by the learned Additional Chief Judicial Magistrate, Jagadhri.

For these reasons, revision petition fails and is dismissed.