Shah id and others vs State of U.P.and others

R.K. Rastogi, J.—This is a revision against the order dated 20.11.2007 passed by theAddl. Sessions Judge, Court No. 1 Bhadohi, Gyanpur in ST. No. 92/07, Sfafe v. Shahid and others, under Sections 452, 336, 308, 323, 506, 427, I.P.C.

Heard the learned Counsel for the revisionists, learned A.G. A. for the State and Mr. Imranullah, learned Counsel for the complainant opp. Party No. 2. With the consent of the parties, I have heard this revision on merits at the admission stage, and I am deciding it finally today at this stage.

The facts relevant for disposal of this revision are that on 21.10.2006 at 9.30 A.M. Afzal Rasheed lodged a report against the accused revisionists under Sections 452, 336, 323, 506, 427, I.PC. with these allegations that on 21.10.2006 at 8 A.M. he and his brother Amzad were sitting in his Hata (boundary) and at that time the above named accused persons having iron rod, Hockey stick, brick etc. reached there and started to demolish northern wall. Afzal and his brother prohibited them from doing so, then all the persons entered the compound and started to beat both of them. Amzad received injury on his head from the iron rod and there was bleeding. Sabir also caused injury to Amzad by brick. Thereafter the accused ran away threatening to kill them.

On the above report the police registered the case under Sections 452, 336, 323, 506, 427, I.PC. PS. Bhadohi District Sant Ravidas Nagar.

Injured Afzal Rashid was medically examined on 21.10.2006 at 10 A.M. He had contusion on the right temporal scalp besides abrasion and contusion on left forearm and left wrist. Amzad Rashid had received lacerated bone deep wound over the right side of occipital bone and scalp and multiple abrasions over several parts of the body and one contusion on right wrist. No abnormality was detected in the Xray of Afzal Rashid but in the xray of Amzad Rashid crack fracture of right side occipital bone of skull was found. It further appears that during investigation the first I.O. added the charges under Sections 308 and 452, I.PC. but thereafter the investigation was transferred to another I.O. and he deleted the charges under Sections 308 and 452, I.PC. and submitted a chargesheet under Sections 336, 325, 323, 427 and 506, I.PC. only. However, the learned Magistrate on that chargesheet took cognizance under Sections 452, 336, 308, 323, 506 and 427, I.PC. vide his order dated 17.1.2007. The above order was challenged by the accused revisionist by filing Criminal Misc. Application No. 8689 of 2007, Shaheedandothersv. State of U.P and another, under Section 482, Cr.P.C. That application was decided by this Court vide order dated 19.4.2007 in which the above order of the Magistrate was maintained and the prayer for its quashing was refused. However, the Court permitted the accused applicants to raise this objection regarding charge at the time of framing the charges. The relevant portion of the above order is as under:

"However, it shall be open to the applicants to raise objection at the time of framing of the charge if they move an application claiming discharge. In case, such an application is moved the same shall be heard and disposed of in accordance with the provisions of law."

The case was committed to the Court of Sessions. Then it was transferred to the Court of Addl. Sessions Judge Court No. 1 Bhadohi, Gyanpur for trial. The accused revisionists moved an application for discharge in that Court on 7.6.2007. That application was rejected by the Addl. Sessions Judge vide order dated 20. 11. 2007. Aggrieved with that order the accused have filed this revision.

I have heard the learned Counsel for both the parties. The learned Counsel for the revisionists submitted that in pursuance of the order passed by this Court in Criminal Misc. Application No. 8689/07 the accused revisionists had moved an application for discharge before the Addl. Sessions Judge Court No. 1 Bhadohi and in its paras No. 5 to 11 they claimed their discharge in respect of offences under Sections 308/452, I.P.C. He contended that the learned Sessions Judge after hearing the parties on this application had not decided it on merits, but had passed an order in such a manner as he would have been deciding a revision against the order of the Magistrate. A perusal of the order passed by him reveals that in the earlier portion he has described the facts of the case, and the last para of the Court''s order runs as under :

It was submitted by the learned Counsel for the accused that in the last portion of his judgement the learned Sessions Judge has not recorded his own finding regarding the charge and has observed that the order passed by the C. J.M. was legally justified and the order of cognizance taken by him under Sections 308/452, I.P.C. was also justified and there was no necessity to interfere with that order and so the accused should appear in the Court on 27.11 .2007 for framing of charges. His contention was that in this way the learned Addl. Sessions Judge has not recorded his" finding on the pleas raised by them in the application for discharge and so the order passed by him should be set aside and the matter should be remanded to his Court for passing a fresh order on the application for discharge.

After perusal of the record I am in agreement with the contention of the learned Counsel for the accused revisionists. In fact a perusal of the above order passed by the learned Addl. Sessions Judge gives an impression that he was purporting to decide a revision against the order of the Magistrate and not an application for discharge.

Under these circumstances, I am of the view that the aforesaid order passed by the learned Addl. Sessions Judge in which he has neither considered the application for discharge of the accused under Section 452/308, I.P.C on merits nor has recorded his own finding on the application for discharge, deserves to be set aside and the matter should be remanded to the learned Addl. Sessions Judge Court No. 1 Bhadohi, Gyanpur for a fresh decision in accordance with law.

This revision is therefore allowed. The order dated 20.11 .2007 passed by the Addl. Sessions Judge, Court No. 1 Bhadohi Gyanpur in ST. No. 92/07, State v. Shahid and others, under Sections 452, 336, 308, 323, 506, 427, I.P.C. is set aside and the matter is remanded to that Court for deciding the application for discharge afresh in accordance with law in the light of the observations made in the body of the judgement. The parties shall appear before the Addl. Sessions Judge, Court No. 1 Bhadohi, Gyanpur on 11.12.2007.

It was submitted that date 5.12.2007 is fixed before the trial Court. The learned Counsel for the accused applicants may inform the Court below that the date 11 .12.2007 has been fixed in this case for hearing the application for discharge afresh.

Let a certified copy of this order be issued to the learned Counsel for the parties within 24 hours on payment of usual charges.