SUNIL Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) THE present petition assails the order dated 3rd November, 2010 framing charges for offences under Sections 186/353/332/308/34 IPC against the Petitioner. Learned counsel for the Petitioner contends that even taking the allegations on the face of it, no offence under Section 308 IPC is made out. The injuries are abrasions caused by blunt weapon which are not possible by an iron rod, as alleged. The injuries could have been caused by fall. Even taking the allegations on their face, giving a brick blow would not make out an offence under Section 308 IPC. As regards, Sections 186/353/332, the events are so intermixed that Sections 186/353 cannot be separated. The separation of two cannot be done by camouflage to bypass provision of Section 195 Cr.P.C. Section 195 Cr.P.C. mandates filing of a complaint and the cognizance thereon. The filing of the charge -sheet and the cognizance thereon is bad in law and the trial stands vitiated. Thus, according to the Petitioner even taking the allegations on the face of it, at best an offence under Section 332 IPC is made out. Further, since the same is a non -cognizable offence, no FIR could have been registered and cognizance taken on a charge sheet filed thereon by the learned Trial Court. The contention of the Petitioner is fortified by the fact that the first D.D. entry i.e. DD No. 21A also talks about a fight between the Complainant and the driver of the TSR and not the Petitioner. Reliance is placed on Durgacharan Naik and Ors. v. State of Orissa, : AIR 1966 SC 1995 and C. Muniappan vs. State of Tamil Nadu, : 2010 (9) SCC 567.

(2.) LEARNED APP for the State, on the other hand, contends that in the present case the complaint was filed by the Head Constable Brij Mohan Sharma. The case falls within the ambit of explanation to Section 2(d) Cr.P.C. There are two injuries on the head of the Complainant, one on the parietal and the other on the temporal region. Thus, it cannot be said that there was no intention and an offence under Section 308 IPC is not made out. Reliance is placed on Rajesh Sharma @ Raju, 2011 JCC 266 to contend that even in the absence of injury, the Court has to see the intention to find out whether the offence under Section 308 IPC is made out or not. The prosecution under Section 332 /353 IPC is not barred in the absence of a complaint under Section 195 Cr.P.C. As a matter of fact, the charge -sheet itself states that along with the chargesheet permission under Section 195 Cr.P.C. has been filed in the sealed cover. Reliance is placed on C. Muniappan vs. State of Tamil Nadu, : 2010 (9) SCC 567.

(3.) IT may be noted that the Petitioner along with two others came to the spot on the phone call made by Kulvinder Singh. All the four persons started beating the Complainant and Constable Inder Raj. The Petitioner picked -up a stone and hit the head of the injured. Another person picked -up rod from the petrol pump and started beating the Complainant. The forth boy starting boxing and kicked them. Thus, the common intention can be inferred from the facts of the case. Further in an offence of giving an injury by the stone on the head which is a vital portion, it cannot be said that no intention to cause injury which if causes death would amount to culpable homicide not amounting to murder, is not made out. Thus, I find no infirmity in the order on charge for offence under Section 308 IPC. Learned counsel for the Petitioner has fairly admitted that on the facts of the case offence under Section 332 IPC is made out.