KAILESH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel and the learned A. G. A. Charge under Section 302, I.P.C. was framed against the four revisionists on 25.3.1996 in Sessions Trial No. 108 of 1996 by the IVth Additional Sessions Judge, Varanasi. The revisionists filed an application on 1.7.1996 stating that they were not heard on the point of framing charges. That petition was disposed of by an order dated 4.4.1997. The present revision is directed against framing charges as well as the order dated 4.4.1997. The only grievance made out is that the revisionists were not heard before framing charges as, according to them, charges, at best, could have been framed under Section 304, I.P.C, only and charge-sheet was also submitted under that section.

(2.) THE court, while framing charges, is not bound by the opinion of Investigating Officer regarding the offence committed. Charges is required to be framed on the basis of materials prima facie suggesting an offence. Moreover the order dated 4.4.1997 clearly indicates that in the order dated 25.3.1996. there was a clear mention that the learned counsel of the accused-revisionists was heard before framing the charges. THEre is yet another aspect. Neither the forum of the trial nor the procedure for trial would change with the change of the section of the offence when it is a question either of Section 302 or 304. I.P.C. We have implicit faith on the Judge that unless materials come for offence under Section 302. I.P.C., a conviction for that offence may not be made. In fact the order dated 4.4.1997 makes it clear that the trial Judge was alive of this fact that although charge under Section 302. I.P.C. was framed, only the evidence would determine where it was really an offence under Section 304, I.P.C.