Nazim Khan vs Iddu Khan and Others

A.S. Tripathi, J.

This revision has been filed against the order dated 2.3.1994 passed by Addl. Sessions Judge, Basoda, District Vidisha. where by it was directed that the charge u/s 307 1. P. C. was not prima facie made out against the accused and the case was not triable by the Court of Session. The learned Addl. Sessions Judge observed that charges only u/s 147. 148, 149, 324 and 325 and 326 IPC. were made out. Accordingly, it was directed that the file be sent back to the Magistrate concerned for trial of the offences according to law.

Against this order no revision was filed by the State. The complainant of the case Nazim Khan has preferred this revision before this Court against the said order with the prayer that the direction be issued that the ease he tried by the Court of Session and also for framing of the charge u/s 307 I.P.C.

The main contention raised in this case was that this revisional the complainant was not maintainable and the complainant had no locus standi to file revision before this Court when the State has not filed any revision.

Learned Counsel for the opposite party relied on the case of Kanhaiya v. Kashinath, 1979 Cr. LJ. 409 Win which the learned Single Judge of Allahabad High Court held that a revision by the complainant in a police challan ease is not maintainable when the State did not file any revision.

Reliance was further placed on the case of Thakur Ram Vs. The State of Bihar, In that case which was a revision against the order of discharge, the Hon''ble Supreme Court held that after long lapse of time the order of discharge could not be challenged by a revision. However, revision in the absence of the revision by the Slate was not considered.

Regarding the nature of injuries, reference was also made to the cases of Ramchandra v. State of M.P. 1989 (II) MPWN 118; Rajaram v. Kadori, 1981 (I) MPWN 39, Triyogi Narayan v. State of M.P., 1988 (II) MPWN 74. and Halka v. State of M.P., 1988 (II) MPWN 74.

On the other hand, Learned Counsel for the petitioner placed reliance on the case of Pratap Vs. State of U.P. and Others, in which it was clearly held that:

The power u/s 439 Cr. P.C. (S. 397 Cr. P.C.) is one which the High Court can exercise suo mom and all that a person tiling a revision petition under that section does is to draw the Court''s attention to an illegal improper or incorrect finding sentence or order of a subordinate Court. Such powers are not affected by the fact that the revision petition is filed by a private person and not by the Government.

It was therefore, argued that a complainant can file a revision even it the State did not choose to file any revision.

On the point of injury, Learned Counsel for the petitioner relied upon the cases on Sarju Prasad v. State of Bihar, AIR 1905 SC 843, in which it was held that if grievous injury is caused on vital organ, it may be a ease u/s 307 I. P. C.

Similarly in the case of State of M.P. v. Ramdeen, 1989 JLJ 310, it was observed that.

To justify the conviction u/s 307 1.P.C. it is not essential that a bodily injury capable of causing death must have been inflicted. The presence of the requisite intention coupled with an overt act in execution thereof suffices.

Even if the case of the petitioner is taken to he that he has no right to file a revision against the order of the Sessions Judge when the State did not prefer any revision, even then the Court can take cognizance suo motu and can pass appropriate orders u/s 397 Cr. P. C. Further it was held in the case of Pratap v. State of U.P. (supra) that even if the State does not file any revision the Complainant is not precluded to move the revisional Court to correct the order which is said to be in error apparent on the face of the record. As such, this Court can suo motu call for the record and pass appropriate orders.

However, considering the nature of the injuries, which is said to be on the vital part, the injury report shows that the injury was to doubt serious but subsequently it was found to be a simple injury and the patient was discharged after a little treatment in the hospital. There was one injury which was said to be on vital part. The other injuries caused were not on any vital part.

Considering the facts and circumstances of the case that it was a sudden quarrel between the parties and several other persons has taken part from both sides, it could not be said to be a simple case of attempt to commit murder by ;, particular accused. The learned Addl. Sessions Judge after examining the facts and circumstances of the case came to the conclusion that the offence u/s 307 I. P. C. prima facie was not made out and the charge u/s 326 I.P.C was simply made out and directed the case to be sent back to the Magistrate concerned to try the cases according to law.

The learned Addl. Sessions Judge after examining the facts of the case and nature of injuries came to the conclusion that charge u/s 307 I.P.C. was not made out and in view of this even if this Court proceeds to act suo motu after calling for the record, it is not justified to interference with the finding of the learned Addl. Sessions Judge recorded in this case.

In revision u/s 397 Cr. P.C. only the mistake apparent or the face of the record to be corrected, or appropriate order can be passed for the ends of the justice. In this particular case, the learned Addl. Sessions Judge while directing the file to be sent back to the concerned Magistrate to try the case as no charge u/s 307 I.P.C. could be made out cannot be said to be against the weight of evidence or it is a mistake apparent on the face of the record. Therefore, I find no merit in this revision-petition and the same is accordingly dismissed.