BACHAN PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) Heard the learned counsel for the revisionist and learned A. G. A. 2, The impugned order dated 9-11-1992 passed by the learned 1st Additional Sessions Judge, Gorakhpur does not appear to be legal and valid. As a matter of fact, he gave a rinding that no case under Section 307, I. P, C. was made out. This was not required at the stage of framing of the charges. The impugned order itself shows that the assailants were exhorting each orher to kill the complainant which prima facie showed that the common object to kill him was there. The court below on the basis of surmises and conjectures, wrongly observed that such utterances were made during fights without there being an intention or object to kill the victim. There was no basis at all for the aforesaid observation by the learned 1st Additional Sessions Judge, Gorakhpur. 3. The other reason pointed out by the court below in support of his order was the absence of supplementary injury report on the record. The court below should have summoned the supplementary injury report instead of quashing the commital order itself regarding the offence under Section 307, I. P. C. The assailants, according to the facts of the case disclosed by the Court below in its judgment, were armed with fire-arms, lathies and spears. They were sixteen in number. They had used their weapons during the incident. Prima facie, therefore, it appears (hat the intention or object to kill was there otherwise there was DO need for using fire-arms, and other weapons. The spears were also lethal weapons and were used in the incident which suggests that there was an intention or object to kill the complainant. Considering all these circumstances, the learned lower court, according to the allegations in the First Information Report, should have framed charges under Section 307, IPC simpliciter and read with Section 149, IPC. 4. The court below also acted illegally in not framing the charges against the accused persons before sending the case for trial to the court of the committing Magistrate. Sub-clause (A) of sub-section (1) of Section 228, Cr. P. C. , required the court bslow to first frame the charges against the accused persons and thereafter, to send the case for trial to the C. J. M. , He however, left it to the C. J, M. to frame the charges according to his discretion which was not proper. 5. In view of the above circumstances, the revision application is allowed, the impugned order dated 9- 11-1992 passed by the court below is quashed and the Court is directed to frame the necessary charges and pro ceed with the trial against the accused persons in accordance with law and the observations made above in the body of this judgment. Revision allowed. .