PRITAM PRASAD Vs. LAKHAN SINGH

JUDGEMENT

(1.) PETITIONER has filed this revision against the order dated 1st April, 2003, passed by First Additional District Judge, Bhopal, in Sessions Trial No. 329/02, under Section 228 (1) of Cr. PC, remanding the case to Chief Judicial Magistrate, bhopal, for trial.

(2.) IN short, the facts of the case are that petitioner/complainant pritam Prasad lodged a report against respondents/accused persons, on which crime No. 68/94 under Sections 147,148,149, 323, 325, 506, 427 and 307, IPC was registered by Police Parwaliya Road, Bhopal. However, after investigation, police filed charge-sheet before the Court of Judicial magistrate First class under Sections 147, 148, 149, 323, 325, 506, 427, IPC. Section 307, IPC was omitted by the police. Learned Magistrate, by order dated 3-4-2000 framed the charges against the accused persons under Sections 147,148,323,325,506,427 read with Section 149, IPC. During trial, eight prosecution witnesses were examined. On 24-4-2002, Counsel for complainant moved an application under section 216 read with Section 209, Cr. PC praying for alteration of the charge by adding Section 307. According to him, from the evidence and material on record, offence under Section 307 was prima facie made out. Therefore, he prayed that case be committed to Sessions Court as the offence under Section 307 was exclusively triable by the Court of Sessions. By order dated 19-8-2002, learned Magistrate rejected the said application.

(3.) STATE challenged the aforesaid order by filing Criminal Revision No. 263/02 before the Court of Sessions. The revision filed by the State was allowed by the Additional Sessions Judge on 24-10-2002, holding that on the facts and in the circumstances of the case, there was prima facie material to frame the charge for the offence under Section 307, IPC and learned Trial Magistrate was directed to commit the case. In compliance of the order passed by the learned additional Sessions Judge, case was committed. The case was made over to the court of Third Additional Sessions Judge, Bhopal, for trial. However, accused persons moved an application under Section 409 of Cr. PC for transfer of the case from that Court. By order dated 7-2-2003, learned Sessions Judge, transferred the case from the Court of Third Additional Sessions Judge to the court of Additional Sessions Judge, Bhopal. Learned First Additional Sessions judge heard the charge arguments and after entering into deep discussion of facts held that prima facie no charge for the offence under Section 307 was made out and passed the impugned order under Section 228, Cr. PC, remanding the case to the Magistrate for trial under Section 326/149, IPC.