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KHEM CHANDRA & OTHERS versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Khem Chandra & Others v. State Of U.P. & Another - APPLICATION U/s 482 No. 17553 of 2005 [2005] RD-AH 7416 (13 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble M. K. Mittal, J.

Heard Sri Mangala Prasad Rai, learned counsel for the accused applicants, learned A.G.A. and perused the record.

Application under Section 482 Cr.P.C. has been filed to quash the proceedings in S. T. No. 1320 of 1998(State Vs. Sheo Raj and others) under Sections 307, 325, 504, 506 IPC, P.S. Sector-20, Noida pending in the Court of Addl. Sessions Judge/F.T.C. Court no. 3, Ghaziabad.

Brief facts of the case are that the First Information Report was lodged by Tejpal Singh against the applicants under Sections 323, 325, 506 IPC. It was alleged that the accused persons had belaboured Rajveer, the brother of the informant with Hockey and Danda on 21.10.1992 at about 2.30 p.m. when he and Rajveer were returning to their village. Leg bones of Rajveer were also fractured in the incident. During investigation, the injured stated under Section 161 Cr.P.C. that he was attacked by the accused persons with intention to kill him. After investigation charge sheet was submitted only against  Shivraj under Sections 307, 325, 504, 506 IPC. Thereafter the complainant and the medical officer were examined on oath and on the basis of the application filed by the prosecution, three accused namely Brijpal, Netrapal and Khemchandra were summoned under Section 319 Cr.P.C.  vide order dated 16.9.2004 under Sections 307, 325, 504 and 506 IPC. Accused persons at the time of framing of the charges contended that no offence under Section 307 IPC was made out but the learned Judge did not accept their contention and found that all the four accused were liable to be charged under Sections 307, 325, 504, 506 IPC. This order has been challenged in the present application.

The contention of the learned counsel for the accused applicants is that F.I.R. was lodged under section 323, 325, 506 IPC and no allegation about  causing any injury with intention to kill was made, although the injured has stated under Section 161 Cr.P.C. that he was attacked with intention to kill him but the learned counsel for the accused applicants has contended that the injuries were not caused on any vital part and therefore no offence under Section 307 IPC is made out and the learned Trial Court has wrongly directed for framing the charge in that sections also.

Learned A.G.A. has contended that at the stage of Section 227 Cr.P.C., it has to be seen if there is some evidence against the applicant to proceed with the case or that there is no evidence against the accused. In case there is some evidence to proceed and it is not a case of no evidence, the accused cannot be discharged and the learned Trial Court has rightly directed for framing of charge under section 307 IPC also. He has also contended that the question as to under which Section the accused is to be charged has to be decided by the Trial Court.

In the case of State of Maharashtra Vs. Salman Salim Khan and another, 2004(1) SCC 525, it has been held by Hon'ble Apex Court that  though it is open to the High Court entertaining  a petition under section 482 Cr.P.C. of the Code to quash charges, framed by the Trial Court, same cannot be done by weighing the correctness sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. It has also been held in this case that by virtue of such premature finding of the High Court prosecution case gets pre-empted. In the above case, it has also been held that law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate, it is open to the Court at any stage of trial if is comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior Court, it can always do so by committing such case for further trial to a superior court as contemplated in the Code of Criminal Procedure.  On the contrary if the trial is being conducted in a superior Court like Sessions Court and if that Court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that Court based on evidence to convict such accused for a lesser offence. Thus, arguments regarding the framing of a proper charge are best left to be decided by the Trial court at an appropriate stage of the trial.

In view of above position, there is no ground to interfere at this stage in the impugned order. If after the  evidence is recorded and Court comes to the conclusion that no offence under Section 307 is made out and that some lesser offence is made out, the Trial Court can pass suitable orders according to law. In any case the accused are not to be prejudiced and therefore the application being devoid of merits is liable to be dismissed and is hereby dismissed.

Dated: 13.12.2005

RKS/17553


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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