JAGDISH RAI MIDHA Vs. MANOHAR LAL

JUDGEMENT

(1.) On the basis of complaint, F.I.R. under Sections 308 and 325 and other minor sections of the I.P.C. was registered. In the course of dealing the bail application, the judicial Magistrate observed that offence under Section 308 was not spelt out. The first contention is that at the stage of bail, such observation of the Magistrate was unnecessary. It appears that while considering the bail, the Magistrate casually referred to the gravity of offence by observing that mere fracture of the fore - arms would not possibly attract section 308 Cr.P.C.

(2.) It is contended by the counsel that on the basis of these observations, learned Magistrate has framed the charge under Section 325 only. Counsel further submits that the learned Magistrate failed to take into consideration injury on the skull also. However, at that time there was no X-ray report to show that there was fracture in the skull. That apart, at the time when the Magistrate proceeds under Section 209 Cr.P.C. the Magistrate has to take into consideration whether the offence/offences as spelt out from the police report and the document, indicate commission of offence triable by the Court of Sessions. No doubt, at that stage the Magistrate is not to appreciate the evidence in order to decide whether offence is, or is not, brought home. All the same this provision does not contemplate a mechanical and post office job to be per-formed by the Magistrate. To some extent, a judicial application of mind is necessary, though that exercise does not contemplate weighing of material as is done at the conclusion of the case. In the context of that, reference may be made to Section 209 Cr.P.C. It directs that the Magistrate shall commit the case it "it appears to the Magistrate"that the offence is triable by the Sessions Court The import and the scope of various terms, such as, "it appears", is of the opinion ", if satisfied" should be properly understood. In the set of circumstances, the Magistrate is directed to consider the papers submitted under Section 173 Cr.P.C. in order to find out whether it appears that offences are triable by the Court of Sessions. While performing that job he need not be swayed by certain observations made during the consideration of bail application. With these observations, petition disposed.