LAWS(ALL)-2007-3-239

LAL SAHEB Vs. STATE OF U P

Decided On March 16, 2007
LAL SAHEB Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) MRS. Poonam Srivastav, J. Heard Sri P. N. Tripathi, learned Counsel for the petitioners, Sri M. Sarwar Khan Advocate for the opposite party No. 2 and learned A. G. A. for the State.

(2.) SINCE the identical controversy is involved in both the connected writ petitions, hence they are being heard together and decided by this common judgment.

(3.) SRI M. Sarwar Khan appearing on behalf of the respondent No. 2 has emphatically disputed each and every arguments of the learned Counsel for the petitioners. The submission is that the learned Judicial Magistrate is fully empowered to commit any case to the Court of Sessions at any stage either during the inquiry proceeding or in the middle of the trial. There is no bar and, therefore, the apprehension on behalf of the petitioners is without any basis. Reliance has been placed on three decisions; Rajendra Prasad Singh v. State of U. P. and Ors. , 2005 (3) JIC 644 (All) : 2005 (53) ACC, 549, in which this Court had ruled that the X-ray report disclosed the fracture and the Judicial Magistrate had overlooked the fracture at the time of taking cognizance, he cannot be precluded at a subsequent stage if the error is brought to his notice and the Magistrate is satisfied that an offence other than minor Sections is made out. The Magistrate is well within his rights to act according to evidence available on record. The Apex Court has also ruled in the case of State of Maharashtra v. Salman Salim Khan and Anr. , 2004 (48) ACC, 606 (S. C.) and M/s. Swil Ltd. and Ors. v. State of Delhi and Anr. , 2001 (43) ACC 591 (SC ). The Apex Court ruled that it is open for the Magistrate at any stage of the trial to commit the case for further trial to a superior Court as contemplated by Code of Criminal Procedure. The Magistrate is not barred from exercising the power at any stage of the trial. At the stage of issuing process, the Magistrate is required to consider the First Information Report, statements recorded by the police officer and other documents, even where the police report is to the effect that no case is made out, the Magistrate is fully empowered to take cognizance under Section 190 (1) (b) Cr. P. C. The cognizance is taken of an offence and not an offender. "in the instant case, perusal of the impugned order discloses that when the charge-sheet was submitted, the supplementary injury report in the form of X-ray report was not on record. The discharge card of Bhaghirath was not available and for want of necessary documents, the cognizance was taken only under Sections 147, 148, 452, 504, 323, 427 I. P. C. After the medical report was brought to his notice, the Magistrate discovered that the frontal bone of Bhaghirath was fractured which is admittedly a vital part and could have resulted in his death. The satisfaction of the Court is clearly recorded in the impugned order. The objection of the learned Counsel regarding exercise of jurisdiction under Section 319 Cr. P. C. is uncalled and irrelevant. In the instant case, there is no applicability of the Section 319 Cr. P. C. The impugned order is passed on an application on behalf of the contesting respondent in view of the supplementary injury report. The Magistrate has taken cognizance on perusal of additional documents and arrived at a conclusion that an offence under Section 307/308 I. P. C. appears to have been committed and summoned the accused. Objection preferred against the said application was rejected. In the circumstances, I am not in agreement with the submissions of the learned Counsel for the petitioners.