BHUREY Vs. RAISH AHMAD

JUDGEMENT

(1.) By means of this petition, petitioner is praying to quash the orders dated 01.10.2011 and 11.01.2012 passed by the courts below, whereby an application moved on behalf of the petitioner for addition of an offence in Case Crime no.1203 of 2011 during investigation was rejected by the learned Magistrate and the revision filed against the rejection order was also dismissed.

(2.) Petitioner Bhurey is the complainant and in short, at his instance a case at crime no. 1203 of 2011 was registered at Police Station- Sahaswan, District- Badaun against the accused persons namely Raees Ahmad, Wakeel Ahmad, Monu, Tahjeev and Khaleel, who are respondents herein. The accused persons moved an application for their surrender in the aforesaid case before the concerned Magistrate. On the said application, learned Magistrate called for a report from the Police. The Investigating Officer of the case reported back that the aforesaid accused persons were wanted in the aforesaid case under sections 147, 323, 324, 325 of Indian Penal Code, 1860 (hereinafter referred to as IPC). It reflects from the record that before the learned Magistrate would pass necessary orders on the application of the accused persons, the complainant Bhurey moved an application before the Magistrate praying therein that the offence under section 326 of IPC be also added along with aforesaid sections, as one of the injuries caused to him by the assailants accused persons was with a sharp-edged weapon, which fractured his nasal bone. The learned Magistrate declined the prayer of the complainant and rejected the application of the complainant vide his order dated 01.10.2011 and on the application of accused persons, directed that they be taken into custody under sections 147, 323, 324, 325 of IPC. Feeling aggrieved, the complainant preferred a revision before the Sessions Judge, Budaun, which also met the same fate and was dismissed vide order dated 11.01.2012. In this backdrop of the facts, the instant petition has been filed. Both the aforesaid orders dated 01.10.2011 and 11.01.2012 passed by the learned Magistrate and Sessions Judge respectively are impugned in this petition. It is prayed that the learned Magistrate be directed to add the offence under section 326 of IPC also along with the offences mentioned in the report furnished by the Investigating Officer in Case Crime no. 1203 of 2011 under sections 147, 323, 324, 325 of IPC.

(3.) It is contended on behalf of the petitioner that in view of the allegation made in the FIR supported by medical evidence, an offence under section 326 of IPC was also made out against the accused/respondents, but the learned Magistrate without applying judicial mind rejected the application moved by the petitioner in mechanical manner causing gross injustice to the cause of the petitioner. It is further contended that the learned revisional court also did not consider the aspect whether jurisdictional power was exercised with material irregularity or not by learned Magistrate and merely suggesting that this question can be raised at so many other stages of enquiry and trial of the case, dismissed the revision. It is further submitted that the effect of both the impugned orders can not be said to be sound and will lead to an unnecessary prolongation to reach the justice, therefore, both the impugned orders are bad in law and are liable to be set aside and as such, this petition is liable to be allowed.