Toran Singh vs State of U.P.

@DELETEUPPERDATA

Vikram Nath, J.—Heard learned counsel for the applicants Sri K.K. Dwivedi, learned AGA for the State and Sri Vivekanand Rai, Advocate, representing opposite party no. 2.

On a written complain given by opposite party no. 2 Case Crime No. 32 of 2012, under Sections 323, 324 I.P.C., Police Station Kagarol, District Agra was registered. The Investigating Officer submitted charge-sheet under Sections 323, 324 I.P.C. whereupon the Magistrate took cognizance under the aforesaid sections and fixed a date for appearance of the accused for framing of charges. The accused have already obtained bail in the aforesaid two sections. In the meantime the complainant opposite party no. 2. submitted an application dated 10.09.2012 praying therein that the Investigating Officer had not submitted a correct report and in fact upon advise of the Medical Officer X-ray and the C.T. Scan was carried out in which left side parietal bone was found fractured as such Sections 307/ 308 I.P.C. be added, and after taking cognizance matter be committed to the Sessions Court. It appears that this application dated 10.09.2012 was rejected by the Magistrate by order dated 11.10.2012 (Annexure no. 5 to the petition). In the meantime it appears that opposite party no. 2 complainant had preferred an Application under Section 482 No. 38869 of 2012-Samundra Singh Versus State of U.P. and others. The said application was disposed of by order dated 05.02.2013 with a direction to the Additional Chief Judicial Magistrate, Court No. 9 Agra to decide the application dated 10.09.2012 within a period of three months. The order dated 05.02.2013 is reproduced below:

"Heard learned counsel for the applicant.

Learned counsel for the applicant submits that, vide offer dated 10.12.2012 passed by this Court, proceeding in the matter has been stayed. The applicant states that he had prayed for direction to the court below to decide the application dated 10.9.2012 in Case No. 1200 of 2012, State Vs. Toran and others.

In view of the above submission, the order dated 10.12.2012 passed by this Court is recalled and the application is disposed of with a direction to the Additional Chief Judicial Magistrate, Court No. 9. Agra to decide the application dated 10.9.2012 in Case No. 1200 of 2012, State Vs. Toran and others, within a period of three months without granting any unnecessary adjournments to either of the parties."

Pursuant to the direction issued by this Court the Trial Court by order dated 15.10.2013 again considered the application dated 10.09.2012 and has taken cognizance under sections 308 I.P.C. The accused challenged the said order dated 15.10.2013 in revision which has been rejected by the Additional Session Judge, Court no. 1, Agra by order dated 03.07.2014. Aggrieved by the said two orders the present writ petition has been filed.

Learned counsel for the applicant has submitted that once the application dated 10.09.2012 had already been rejected by order dated 11.10.2012, the direction issued by this Court on 05.02.2013 was unwarranted and had been obtained without placing the correct fact before the Court. He further submits that the order dated 05.02.2013 nowhere set aside the order dated 11.10.2012 passed by the Magistrate nor did direct the Magistrate to decide the application dated 10.09.2012 afresh, even if it had been decided earlier. He has further submitted that the Magistrate had no jurisdiction to take cognizance under an additional section in an offence for which cognizance had been taken once. Reliance had been placed upon a judgment of the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, and reference had been made to paragraph 17 of the said report. Based upon the said judgment it has been submitted that the correct stage for addition or subtraction of offence under I.P.C. is at the time of framing of charge and not before as such the Court below had committed the illegality in adding Section 308 I.P.C. at a later stage after cognizance had been taken under Sections 323/ 324 I.P.C.

On the other hand learned counsel for opposite party no. 2 has submitted that in fact the order passed by the Court below was at a stage where charge is to be framed and this fact is mentioned in the impugned orders and therefore there is no illegality.

Having considered the submissions and having perused the material on record as also the judgment in case of State of Gujarat Vs Girish Radhakrishnan Varde (Supra), I am of the view firstly it is not clear that whether the High Court was apprised of the order dated 11.10.2012 passed by the Magistrate rejecting the application dated 10.09.2012, secondly the Magistrate while passing the order dated 15.10.2013 although refers to that it is the stage of charge but nevertheless it has again considered the application dated 10.09.2012. It appears that the orders are not very specific and very accurately worded. The proper course for the Magistrate was to have relied upon the material annexed with the application dated 10.09.2012 and not the application and thereafter proceeded to take cognizance.

Without going into all the above questions since the applicant does not dispute the proposition that at the time of framing of charge section could be added or subtracted and even learned counsel for opposite party no. 2 has not opposed to such a direction being given, the petition deserves to be allowed.

Accordingly, the writ petition is allowed.

The impugned orders 15.10.2013 and 03.07.2014 passed by the A.C.J.M. and Additional District and Sessions Judge, Agra respectively are hereby quashed. The concerned Trial Court is directed to consider the material on record at the time of framing of charge and pass appropriate orders in accordance to law after hearing the accused and the prosecution. It is also open to the prosecution/complainant to file fresh application with regard to consideration of the material on record for adding further section of the I.P.C. It is further directed that the Magistrate concerned shall decide the stage of charge at the earliest in any case within a period of two months from the date of production of certified copy of this order.