STATE Vs. SURINDAR MOHAN

JUDGEMENT

(1.) This petition preferred by the State which raises the grievance that Surinder Mohan respondent should also have been charged U/S. 224 of the I. P. C. discloses an exceptional aspect and I am exercising the powers suo motu provided by section 439 of the Criminal Procedure Code, hereafter called the 'Code'.

(2.) . The allegations against Surinder Mohan, respondent, Sudhir Kumar and Rajeev Kumar were that while Surinder Mohan was in hand-cuffs on the 13th of September, 1971 Sudhir Kumar and Rajeev Kumar approached the constable in whose custody Surinder Mohan was and interfered in order to rescue him. It was alleged that Surinder Mohan also attempted to escape. In order to decide whether the charge was to be framed or not, the learned Magistrate was to act in accordance with section 251-A of the Code He passed an order on the 22nd of August, 1972 by which he discharged Surinder Mohan and decided that charges be framed against Sudhir Kumar and Rajeev Kumar under sections 332 and 225 read with section 34 of the Indian Penal Code.

(3.) . The charges actually framed disclose negligence on the part of the Magistrate. He did not frame the charge against Sudhir Kumar and Rajeev Kumar for the offence covered by section 225 of the Indian Penal Code, The charge against them mentions section 224 of the said Code. That provision would not implicate anyone who attempts to rescue another who may be in police custody. Section 224 of the said code would have been applicable to the case of a person who may himself be in custody.