RAM CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) This is an application under Section 482, Cr. P. C. for quashing order, dated 6-2-1993, passed by the III rd Additional Chief Judicial Magistrate, Faizabad. 2 Learned counsel for the applicant as well as learned State counsel have been heard. 3. Learned counsel for the applicant has argued that at present no offence under Section 308, I. P. C. appears to have been committed from the papers on record but the learned Additional Chief Judicial Magistiate has directed the applicants to produce themselves before the court on the applica tion made by the Investigating Officer that Section 308, I. P. C. also appears to have been committed. A perusal of the file goes to show that the F. 1. R. has been lodged against the applicants under Sections 147/148/323/325/504/506, I. P. C. , Police Station Kumarganj, District Faizabad, which is under investi gation by the police upto this time. The Investigating Officer has moved an application before the court concerned, copy of which is Annexure 1, to the petition, alleging therein that on perusing the case- diary and the persual of the X-ray report, it has c me to light there is a tracture in the skull bone and the offence under Section 308, I P. C. appears to have been committed by the applicants and this section is further to be incorported. Investigation Officer further prayed that the applicants to be summoned in court so that their arrest and bail proceedings may be completed under Section 308,1. P. C. 4. At present there is nothing on record before the Additional Chief Judicial Magistrate to come to the conclusion that an offence punishable under Section 308, I. P. C. appears to have been committed by the applicants. Even the order, dated 6-2-1993, passed by the learned Magistrate, copy of which is Annexure 2 to this petition does not go to show that there is any evidence before the court to show that the applicants have committed any offence under Section 308,1. P. C. Learned Magistrate has mentioned in his order that it is not apparent as to whether investigation under Section 308,1. P. C. is going on or not and it is also not clear as to whether any charge-sheet has been submitted against the applicants under the aforesaid section, even then the Magistrate summoned the accused applicants for 20-2-1993. The procedure adopted by the learned Magistrate cannot be approved because unless an offence under Section 308, I. P. C. appears to have been committed by the accused persons, he could not have directed the applicants to be present in the court for that purpose. The Investigating Officer can file a charge-sheet adding Section 308, I. P. C. When this is done then the Magistrate can consider as to what steps have to be taken. Therefore, unless the charge-sheet is filed the court could not have passed the order summoning the accused persons before it. Therefore, the order passed by the 3 rd Additional Chief Judicial Magistrate, Faizabad, dated 6-2-1993 deserves to be quashed. 5. The application under Section 482/439 is allowed and the order, dated 6-2-1993 is quashed. However, it will be open to the learned Magistrate to take appropriate proceedings after the charge-sheet is filed by the Investgating Officer. Application allowed. .