RADHEY SHYAM Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicants were involved in a case crime No. 188-A of 1989, u/ S. 147, 24, I.P.C. P. S. Bhogaon, District Mainpuri. After investigation, the police submitted a charge-sheet under Ss. 147/148/149/324, I.P.C. The applicants were enlarged on bail in 1989 for the offences under the 0aforesaid sections. On an application of the complainant-informent, the learned Magistrate altered the charge to one under S. 307 substituting S. 324, I.P.C. The learned counsel for the applicants submitted that the said application for alteration of the charge was moved by a private counsel engaged by the complainant and it was not actually filed by the Public Prosecutor. He submits that it was necessary in a State case. Against the said order of alteration of charge under S. 307, I.P.C a revision was filed before the learned Sessions Judge which was allowed and the case was remanded back to the Court below for reconsideration. Again, the learned Magistrate maintained the same order by another order. The learned counsel for the applicant now submits before this Court that the charge could not have altered on the application of a private party unless such an application was moved by the Public Prosecutor. In support of his submission, he cited AIR 1966 SC 911; Thakur Ram v. State of Bihar. The submission of the learned counsel for the applicant is apparently correct. But, on scrutiny of the facts of the case, it appears that the application which was, in fact, moved by the counsel for the complainant was endorsed by the Public Prosecutor. The learned Magistrate considered the same and passed orders for alteration of charge to one case under S. 307, I.P.C. The Hon'ble Supreme Court while observing that a private complainant has no locus standi to move an application in a revision, however, has made an observation that the High Court has not exercised any discretion or passed any other direction in spite of the fact that the application was moved on behalf of the complainant. Since the High Court had not exercised its discretion and had interfered with the order of the Court below, that it was not moved before the Court by the Public Prosecutor, the Supreme Court also maintained the order of the High Court and the Courts below. In the present case, it appears, the learned Magistrate had taken notice of the fact on the application of the complainant which was endorsed and forwarded by the Public Prosecutor. Thus, the error pointed out by the learned counsel for the applicant stands cured and the decision of the Supreme Court cited by the learned counsel would not apply squarely in the case. Further, I have myself perused the injuries. I am satisfied that prima facie order of the learned Magistrate cannot be said to be illegal or perverse. Hence, no interference is called for in the present application under S. 482, Cr. P.C.

(2.) Learned counsel for the applicant stated that the applicants were granted bail in the year 1989 and they have not abused their bail during this period. In the circumstances, I consider that it would not be necessary for securing the ends of justice to send the accused persons again to jail to get themselves bailed out under S. 307, I.P.C. I, therefore, direct that the CJM, Mainpuri, will permit the accused to remain on bail for a period of 2 weeks from today. The applicants during this period will appear before the said Court and furnish fresh personal bonds and securities to the satisfaction of the Court. Till such period the bonds are not filed, the applicants shall not be taken into custody. Further, any observation made in this judgment on facts shall not affect the merits of the case.

(3.) With these observations, this application is disposed of. Copy of this order may be given on payment of usual charges today. Order accordingly.