HAJI SONA ULLAH Vs. AZIZ KHAN

JUDGEMENT

(1.) IN Supdt. and Remembrancer of Legal Affairs West Bengal Versus Anil Kumar Bhunja and ors. (A. I. R 1980 S. C. 52), the Supreme Court has held: "At the stage of framing charges, the prosecution evidence does not commence the magistrate has, therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the Investigation Police Officer. The standard, test, proof and judgment which is to be applied finally before finding the accused guilty or other -wise is not exactly to be applied at the stage of Ss. 227 or 228. At this stage even a very strong suspicion founded upon materials before the magistrate, which leads him to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged may justify the framing of charges against, the accused in respect of the commission of that offence

(2.) IN the present case, the learned Sessions Judge, has entered into a meticulous examination of the evidence and other circumstances of the case and has come to the conclusion that this is a case of free fight between the parties On the premises he has discharged the accused of offences under section 302/149 R.P.C.On the principle laid down in the case of Anil Kumar (Supra), the way the Sessions Judge approached the case cannot be commended. That apart, he himself does not seem to be sure about his finding inasmuch as on the premises, that there was a free fight, each accused could be responsible for his individual act and consequently on the finding that there was a free fight, the learned Sessions Judge was required to investigate the individual acts of the accused before he could frame the charges against them. He has not done so On the other hand, he has held each of the accused prima -facie to be guilty of offence under sections 148/452/336/379/427 RPC Thus the two findings are mutually exclusive. In the circumstances the impugned order is not sustainable.

(3.) THE result is that these revisions succeed and are allowed. The impugned order is set aside. The Sessions Judge, Baramulla, is directed to reconsider the matter and frame fresh charges against the accused in accordance with law. The parties are directed to appear before the Sessions Judge, Baramulla, on 30th October, 1980.