SURINDER KUMAR Vs. STATE

JUDGEMENT

(1.) On September 27, 1992 a fight is alleged to have taken place between the petitioners on the one hand and the tenants of petitioners 1 and 2 on the other. The allegations made in the FIR are that Sunil Kumar and his family were tenants in the premises owned by petitioners 1 and 2 and they were working in the said shop since 1970 under the name and style of M/s.Dharshan Lal & Sons being family business in jewellery; on September 27 at about 4.00 A.M. when Sunil was opening the shop, the petitioners came there and started quarreling with him and said that they should vacate the shop failing which they will have to face dire consequences. On his telling the petitioners that the shop was under their tenancy for the last 20- 22 years and they were paying the rent regularly and it being their only source of income, it was not possible for them to vacate the same, the petitioners 1 and 2 caught hold of him by his arms and Rajesh hit him with saria on his head. Ajay took up a brick from the road and hit on his head and Ramvir, Ajay and Rajesh started hitting him with lathis also hitting with fists and legs; in the meantime, his brother also came on the shop and when he tried to intervene in the matter all these persons also hit him. In the scuffle which had taken place the petitioners 1,2 and 5 also received injuries. On finding these persons fighting, the neighbourers from the market also reached there and Rajesh and Ajay ran away from the spot. Police also reached on the spot and took petitioners 1,2 and 5 as well as Sunil and his brother to the hospital. Statement of witnesses was recorded under Section 161 of the Code of Criminal Procedure and on receipt of MLC report case under section 308, 323/34 of the Indian Penal Code was registered against the petitioners and challan was also filed against them. A cross case under Section 354/323/34 was registered against Sunil and his brother and a challan in that case has also been filed in the Court. The Trial Court after hearing the parties framed charges against the petitioners for their having committed an offence punishable under Section 308/34 and 323/34 IPC.

(2.) Being aggrieved by the order of the Additional Session Judge framing charges against the petitioners for offence punishable under Section 308/34 Indian Penal Code, the petitioners have filed this revision petition for quashing the said charges and for quashing the proceedings under Section 323/34 Indian Penal Code as the police could not investigate the said offence without permission of the Magistrate.

(3.) The contention of Mr.B.K.Sharma, counsel for the petitioners is that to make an offence punishable under Section 308 Indian Penal Code it was necessary that the following ingredients must be present;- a) that the accused has committed the act; b) such act was committed with an intention or knowledge to commit culpable homicide not amounting murder; c) offence was committed under such circumstances that if the accused by that act had caused death, he would have been guilty of culpable homicide.