GORA ALIAS GOLAM HOSSAIN Vs. STATE

JUDGEMENT

(1.) THIS revisional application is in connection with Ketugram P. S. case No. 109 dated 16. 7. 90 under Sections 147/148/149/325/307 Indian Penal Code. Police after investigation submitted charge-sheet. The charge-sheet included inter alia Section 307 Indian penal Code. The learned Magistrate in his order dated 18. 1. 91 observed that the injury was simple in nature, but still charge-sheet had been submitted under Section 307 Indian Penal Code along with other sections and in that view of the matter the learned Magistrate felt that reinvestigation was required and accordingly he directed the Sub-Divisional Police Officer, Katwa to make further investigation in the case by any officer other than the I. O. who submitted the charge-sheet. Thereafter, it appears, police again submitted charge-sheet, presumably after reinvestigation under Sections 147/148/149, 323 and 307 Indian Penal Code. In that context the matter has come before this Court at the instance of the petitioners-accused persons. I find that the learned magistrate was not justified in passing the order dated 18. 1. 91 so far as it relates to his direction for reinvestigation of the case. First, the mere fact that any injury may be a simple one, may not necessarily indicate that section 307 is not attracted. The totality of the facts and circumstances of the case and other materials relevant in this connection are required to be taken into account in considering whether the case comes within the ambit of section 307 indian Penal Code. There may be, instances where even with a slight injury or no injury at all section 307 Indian Penal Code may be attracted. As for example, if some one fired a gun aiming at a person with the intention of killing him but the bullet missed the target and the person aimed at narrowly escaped without any injury at all, still the case may be covered by Section 307 Indian Penal code. This illustration is noted here only to lay emphasis on this aspect that simple nature of the injury isolated from the other attending facts and circumstances may not be a decisive factor in considering whether Section 307 indian Penal Code in the particular case is attracted. The learned magistrate in his order dated 18. 1. 91 did not indicate at all whether he took into consideration the other attending facts and circumstances besides the nature of injury in arriving at his conclusion that Section 307 Indian Penal Code is not attracted. Therefore, he committed a distinct error. Then again even if he felt on the basis of the materials placed before him that the case was not one in which the charge under Section 307 Indian Penal Code was warranted, it was not proper for him on that ground alone to direct re-investigation unless there are other reasons for doing so. The learned Magistrate instead of directing re-investigation simply because the injury was simple could and should have framed charge in respect of the offences which he thought were attracted in view of the materials placed on record if it appeared to him that it was not a sessions triable case. That would have been the proper course which he should have adopted.

(2.) HOWEVER the fact remains that the learned Magistrate directed for re-investigation and thereafter charge-sheet has also been filed under several sections of the Indian Penal Code as mentioned above including, Section 307 of the Indian Penal Code. The learned Magistrate, it appears has also taken cognizance on that charge-sheet by his order dated 18. 2. 92 Since he has already taken cognizance and since the charge-sheet, prima facie includes section 307 Indian Penal Code, it is now for the learned Magistrate to consider under Section 209 of the Criminal Procedure Code whether from the materials "it appears to the learned Magistrate that the offence is triable exclusively by the court of Session". If from such materials it appears prima facie that an offence under Section 307 Indian Penal Code has been committed or for that matter any offence triable exclusively by the Court of Sessions has been committed then and then only he will commit the case to the Court of Sessions as required under the said Section 209 Criminal Procedure Code. In case, however, on consideration of such materials it does not appear to the learned magistrate that Section 307 Indian Penal Code or for that matter any offence triable exclusively by the Court of Session is attracted, in that case, he cannot commit the case to the Court of Sessions under Section 209 Criminal procedure Code and in which case he shall deal with the case under Chapter xix of the Criminal Procedure Code, because in this case the other offences mentioned in the charge-sheet are warrant procedure offences. With the above guidelines the learned Magistrate is directed to proceed according to law in the matter and the revisional application stands disposed of accordingly.