STATE OF GUJARAT Vs. BAVABHAI NAGJIBHAI

JUDGEMENT

(1.) This is a Revision Application by the State against an order of discharge discharging the three opponents against whom a police report was sent under section 302 of the Indian Penal Code. The order of discharge was confirmed in revision by the learned Sessions Judge. In revision before me it is contended by the learned Government Pleader that the order of discharge in so far as Opponents Nos. 2 and 3 are concerned is erroneous. The learned Government Pleader has not contended that the order of discharge of Opponent No. 1 is erroneous.

(2.) The learned counsel for the opponents however contends that there are concurrent findings of fact of both the lower Courts that the prosecution has failed to prove its case that it is open to a Magistrate before committing the accused for trial to consider the case of self-defence suggested by the accused in their examination and that the Courts below having held that the case of self-defence is proved this Court should not interfere in revision. He has also contended that the case of selfdefence pleaded by Opponents Nos. 2 and 3 has been proved by the prosecution itself because according to the prosecution witnesses it was the deceased who committed criminal trespass on the field of the accused at about 1.00 P.M. at night. The learned counsel for the Opponents relies os Vadilal Panchal v. Dattatraya (A.I.R 1960 Supreme Court 1113).

(3.) The instant case arose out of a police report in writing under sec. 190 (1)(b) of the Code of Criminal Procedure. Sec. 190 provides that any Judicial Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such Hence upon receiving a report in writing of such facts made by any police officer on upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed. The instant case was under clause (b) of sub-sec. (1) of sec. 190 and not clause (a) which refers to private complaints.