Randhir vs State

P.R. Sharma, J.—This revision application has been preferred against the order dated the 17th of July 1961 passed by the First Addl. Sessions Judge, Morena, in Criminal Rev. No. 42 of 1961, whereby he directed the present applicants to the committed to the Court of Sessions to stand their trial for an offence under S. 307 I. P. C.

The facts giving rise to this case are that on 28-12-59 a fight took place between "Rameshwar and his brother Babu on the one hand and the present applicants along with certain others on the other side in the course Which both parties received injuries. The police Ambah, after the investigation submitted challans against both parties, for offences u/s 303 and 307 read with S. 34 I. P. C. In Criminal Case No. 120 of 1960 out of which the present petition application arises the Magistrate First Class, Ambah observed on perusal of the papers filed along with the challan that it was difficult to hold that the intention of the accused was to cause death. He, therefore ordered that a charge u/s 325 I. P. C. be framed against Randhir and Rajaram to be tried on a charge u/s 323 I. P. C.

In the first place it would appear from medical certificate that Rameshwar had an incised wound measuring 1"x1/2"x1/3" on the right parietal region as a result of which there was bleeding from the right ear. The patient was in an unconscious state at the time of his admission in the hospital. An X-ray examination revealed fracture of the skull. Another certificate of the Medical Officer, Civil Dispensary, Ambah discloses that the patient continued to be unconsious for 5 or 6 days after his admission to the hospital. An injury caused on the skull with a sharp edged instrument which was attended with such consequences could in all probability have ended in death. I am, therefore, of the opinion that the learned Magistrate ought not to have held without examining the doctors under whose treatment Rameshwar was kept; the injuries on his head was not such as could in all probability have resulted in death. Since it was a case of a piloted fight between the two parties the persons who took part on either side would prima facie be constructively liable for the offence committed by other members of their party. At any rate the question of constructive liability of Rajaram for the offence committed by Randhir was a matter which could be decided only after the entire circumstances of the case had been proved by legal evidence. A committing Court is not supposed to take upon itself the responsibilty of deciding what offence will ultimately be found proved against each accused at the conclusion of the trial. An attempt of this nature by the Committing Magistrate to usurp jurisdiction to try a case of such a serious nature by framing a charge for lesser offences cannot be too strongly depricated. An injury was caused to Rameshwar with a ''Farsa'' on the head which resulted in a fracture of the skull. Rameshwar remained unconscious for a number of days and thereafter developed symptoms of neurosis due to brain injury. Certainly in a case of thus nature a charge u/s307 I. P. C against Randhir and S. 307 read with S. 34 along with S. 323 I. P. C. against Rajaram was called for.

The learned counsel for the applicants did not Seriously dispute this position when faced with the medical certificate showing fracture of Rameshwar''s skill. He, however, contended that since the Mag. had framed a charge for lesser offences against the present petitioner the Sessions Judge could not in exercise of his powers under S. 437 Cr. P. C. set aside the order of discharge in respect of the offence u/s 307 I. P. C. According to the learned counsel S. 437Cr. P.C. would not apply to those cases where a charge for some offence is framed by a Magistrate against the accused.

It has been held by the Lahore, Madras, Andhra Pradesh and Patna High Courts as also by the Nagpur Judicial Commissoner''s Court that the word ''discharge'' in Sections 436 and 437 Cr. P. C. includes the case of a person partially discharged. (See- AIR 1934 164 (Lahore) . In Re: Nalla Baligadu and Others, ; In Re: Valluru Narayana Reddy and Others, ; AIR 1936 87 (Nagpur) : and Rambilas Pd Singh Vs. State of Bihar AIR 1940 Pat. 507. The Allahabad and the Calcutta High Courts have however, taken a countrary view (See-Naharsingh Vs. The State (FB): AIR 5952 ALL. 231 and AIR 1953 Cal. 557.

Grayer H, in Ganga Datta''s case (supra) observed that where a Magistrate deliberately frames a charge on a minor Section instead of on the major Section, on which the case starts, his action is equivalent to a discharge with regard to the major offence. It was held that in such a case the Sessions Judge would have power to interfere with the order of discharge. It would make no difference whether the implied order of discharge was passed in committal proceedings or in a case triable by a Magistrate Court. In re Halla Baligadu (supra) a full Bench of the Madras High Court dissented from the view the Allahabad High Court and held that when a Magistrate discharges an accused in respect of an offence exclusively triable by a Court of Sessions and proceeds to try himself for an offence within his jurisdiction, it will be open on the language of S. 437 Cr. P. C. to the Distt. Magistrate to direct the committal of the accused for trial "upon the matter of which he has been improperly discharged" it was observed that the word "matter is elastic enough to comprehend a single charge or a plurality of changes a single offence, or plurality of offences a part of a case or the whole of a case. Desai J. who delivered the leading judgment in Naharsingh''s case (supra) referred to the previsions of S. 209 Cr. P. C. which, lay dawn that if the Magistrate does not find sufficient grounds for committing the accused person for trial he will record his reasons and discharge him. If the Magistrate holds that the person could be tried before himself or some other Magistrate there could be no discharge at all. I am afraid it is not possible to accept this reasoning. All that the word ''unless'' in S. 209 Cr. P. C. signifies is that the Magistrate is not bound to record his reasons for framing a charge for a minor offence. A person who is accused of an offence must be deemed to have been exonerated from that accusation when he is not charged with that offence. The mere fact that he is charged with a lesser offence does not alter the fact that he cannot be tried for the major offence of which he Was accused, unless he is charged with it. It must, therefore, follow that, person accused of major offence is discharged in respect of that offence even in a, case where a charge for a lesser offence is framed. The learned Judge further observed that under the Code there can be no discharge of proceedings still continue against the accused in the case. I for one fail to see that if a person who is tried on a charge or a major offence but is convicted of a minor offence must be deemed to be imphedly acquitted of the major offence, why the same reasoning should not be applied to imply a discharge in respect of an offence for which a prosecution was launched but on which no charge was framed by the Magistrate. In the Yunus Shaikh Vs. The State, the accused was held not to have been improperly discharged. The Court did not hold that no order of discharge was impliedly passed.

I would, for the reasons stated above, prefer to follow the view taken by Gruar J. in Ganga Datta''s case (supra) which is supported by the decisions referred to by me above of the Madras, Patna, Lahore and Andhra Pradesh High Courts. Lastly I would like to refer the decision in Baombalam Pd. Singh''s case (supra). It was observed therein that where two views are possible on the evidence it is the duty of the Magistrate to commit the accused for trial. Where this was not done the accused must be deemed to have been improperly discharged in regard to the offence triable exclusively by the Court of Sessions.

In the counter-case arising out of the same incident the accused committed to their trial in the Court of Sessions. In the present case inspite of the fact that Rameshwar received an injury with a sharpedged weapon on a vital part of the body which had resulted in fracture of the skull, it is difficult to understand why the learned Magistrate declined to commit the accused for trial before the Court of Sessions. I am clearly of the opinion that on the merits the action taken by the leaned Magistrate in framing a charge for lesser offences against the present applicants, merely on perusal of the papers filed with the challan was altogether unjustified.

I would, therefore, hold that the learned Addl. Sessions Judge acted rightly in direction the Magistrate concerned to commit the accused for trial to the Court of Sessions.

In the result this revision application has no force and is hereby dismissed.