Shanker Jee Shukla vs State of U.P. and Another

R.K. Rastogi, J.—This is an application u/s 482, Cr. P.C., for quashing the proceedings of Criminal Case No. 2363 of 2004, State v. Shanker Ji Shukla, Case Crime No. 256/97 under Sections 308, 325, 323, 504 and 506, I.P.C., P. S. Meja District Allahabad.

The facts relevant for disposal of this application are that on 16.8.1997 an F.I.R. was lodged by Sri Shankaracharya Tiwari against the accused Bharat Ji Shukla, Shankar Ji Shukla and Lakshman Ji Shukla under Sections 308, 323, 504 and 506, I.P.C. with these allegations that on the aforesaid date at 5 p.m. these accused had assaulted Umesh Datt Shukla and Shankar Ji Shukla from Lathi, Lakshman Ji from iron rod and Bharat Ji Shukla from butt of gun had caused injuries to Umesh Datt Shukla. The injuries of Umesh Datt Shukla were medically examined and his x-ray was also done, and after completion of investigation, the police submitted charge-sheet against the accused applicants under Sections 308, 325, 323, 504 and 506, I.P.C. Aggrieved with the charge-sheet Shanker Ji Shukla has filed this application u/s 482, Cr. P.C.

Notice of the application was issued to the opposite party No. 2 who was served personally and learned A.G.A. had accepted notice on behalf of opposite party No. 1 but no counter-affidavit has been filed by any opposite party. I have heard the learned Counsel for the applicant as well as the learned A.G.A. for the State.

Learned Counsel for the applicant submitted before me that no case u/s 308, I.P.C. was made out but the Magistrate has started proceeding for commitment of the case in a mechanical manner without considering this aspect whether the offence u/s 308, I.P.C. was made out or not. In support of his contention he cited before me a ruling of Hon''ble Supreme Court in Rizwan v. Waqar Ahmad and Ors. 1993 SCC 455. In this case a charge-sheet had been submitted against the accused persons u/s 307, I.P.C. The Magistrate having regard to the nature of the injuries instead of committing the case converted it into a warrant case and started to try the accused under Sections 323 and 324, I.P.C. The above order of the Magistrate was challenged before the Sessions Judge who allowed the revision and directed the Magistrate to commit the case to sessions court holding that the Magistrate had no option except to commit the case. A revision was filed against that order before the High Court. The High Court allowed the revision and confirmed the order of the Magistrate. However, it granted a certificate for Special Leave to Appeal to the Hon''ble Apex Court on the ground that substantial question of law was involved in it. Then the matter went to the Hon''ble Apex Court and the Hon''ble Apex Court held that Section 209, Cr. P.C. lays down that if it appears to the Magistrate that the offence is triable exclusively by the Court of Session then it has to commit the case. It was further held that almost all of the injuries in the case were simple, and in that view of the matter the Magistrate thought that it was not a fit case for committal to the sessions court and the High Court had rightly upheld that view.

The contention of the learned Counsel for the applicant is that in the present case also no case u/s 308, I.P.C. is made and so there is no justification for committal of the case to the Court of Sessions because the remaining offences are triable by the Magistrate. I am of the view that this question whether, prima facie, a case u/s 308, I.P.C. is made out or not is to be decided not by this Court but by the Magistrate where the case is pending. I am, therefore, of the view that the accused applicant should appear before the Magistrate concerned. It appears from perusal of the certified copy of the order sheet that the proceedings for committal of the case are going on in the Court of Magistrate and for that purpose non-bailable warrants have been issued against the accused. I hereby order that the accused applicant should appear before the Magistrate concerned within a month from today and during this period execution of non-bailable warrant and other coercive process, if already issued against the accused, shall remain stayed. The applicant after appearing before the Magistrate may apply for bail and his application shall be considered by the Magistrate on merits taking this fact into consideration that the offence u/s 308, I.P.C. though exclusively triable by Sessions Judge, is punishable with imprisonment upto 7 years only, and so there is no legal bar for the Magistrate to grant bail to the accused for an offence u/s 308, I.P.C., and in this view of the matter the Magistrate can himself consider the bail application of the applicant on merits and pass suitable order thereon, and he shall decide the bail application of the applicant expeditiously in the light of the directions of this Court in New India Assurance Co. Ltd. Vs. Gangarasaiah and Another, After putting in appearance the accused can move an application before the Magistrate that no case u/s 308, I.P.C. is made out and so the case should not be committed to the Court of Sessions and the case should be tried by the Magistrate, and if any such application is moved, the Magistrate shall consider the same on merits and pass suitable orders thereon. The applicant may also, after putting in appearance before the Magistrate, seek exemption from further appearance till disposal of the above application, and the Magistrate may pass suitable orders on that application also regarding their exemption from personal appearance.

This application u/s 482, Cr. P.C. stands disposed of finally in the above manner.