NAGENDRA SINGH v. THE STATE OF BIHAR

O R D E R The petitioner is one of the named accused of Sessions Trial No.738 of 2006 arising out of Parsa P.S. Case No.24 of 2006 and by this application he seeks the quashing of the order dated 23.11.2007 passed therein by the learned Presiding Judge, Fast Track Court No.I, Saran at Chapra, whereby the court has been pleased to reject the petition filed by the petitioner under Section 228 Cr.P.C. The prosecution case based on the written report submitted by one Akbar Ali, on 17.4.2006, inter alia, is that at about 6 A.M. on the same day while the informant was sitting in his osara, the F.I.R. named accused , eight in number, including the petitioner variously armed with lethal weapons arrived and at his darwaja catching hold of him assaulted him with a butt of the gun and upon the informant raising alarm his bhabhi, Maimu Nisha, came to his rescue whereupon she too was assaulted with lathi and fists on the arms, back and hip - 2 - and the informant was dragged to the darwaja of accused, Birendra Singh while being assaulted with fists where he was tied with rope and again assaulted with lathi, danda and butt of the gun. Efforts were also made to strangulate him. However, on the intervention of co- villagers the informant was set free. It was further alleged that subsequently the accused again came to his darwaja and resorted to firing wherein accused Birendra Singh fired three shots and accused Ravindra Singh fired two shots. Thereafter stones were also pelted. The genesis of the occurrence is said to be the fair price shop of the wife of accused Birendra Singh wherein the informant was a customer for the last 20 years and although no supply of essential articles were made to him, he was being forced to sign on the register which they refused. Assailing the impugned order, it was sought to be submitted by the learned counsel for the petitioner that although no offence under Section 307 I.P.C. had been made out from the evidence of the witnesses examined in course of the investigation and a chargesheet was submitted under Sections 147, 148, 149, 323, 341, 447, 448 and 337 I.P.C., the learned Magistrate differed from the same and took cognizance under the aforesaid Sections as also under Section 307 I.P.C. and Section 27 of the Arms Act. It is said that an application under Section 482 Cr.P.C. being Criminal Misc. No.44523 of 2006 was preferred by the petitioner which was dismissed as withdrawn by order dated 4.12.2006. Thereafter after commitment of the case to the court of sessions a petition under Section 228 Cr.P.C. was filed which - 3 - was rejected by the impugned order. The further submission of the learned counsel for the petitioner is that the learned trial court before rejecting the petition under Section 228 Cr.P.C. was required to apply his mind to the materials available in the case diary, the chargesheet and also take note of the injury report of the injured. It was also submitted that the court was also required to see that there was a counter case being Parsa P.S. Case No.25 of 2006 lodged by the son of this petitioner. It was further submitted that from the injury report, it would be evident that no case under Section 307 I.P.C. was made out against the petitioner. By order dated 15.2.2008, the case diary as also the injury reports of the informant, Akbar Ali and injured Maimun Nisha was called for from the trial court and from perusal of the injury reports received from the trial court it would appear that Maimun Nisha had sustained five injuries, namely, (1) Bruise 1” X 2” over front of upper arm 3” above the elbow joint, (2) Swelling 2” X 1” over front of chest 3” below clavicle with pain in chest, (3) Swelling 1” X 1” over right iceosacral joint with pain, (4) Swelling 1” X 2” over right mid scapular area and (5) Pain suprapubic . In the opinion of the doctor all the injuries were simple in nature and caused by hard and blunt substance. The injuries sustained by the informant, Akbar Ali were three in number, namely, (1) Bruise 1/2” X 1/2” on lateral side of face 1” anterior to left pinne, (2) Pain whole of the body and (3) Swelling 1” X 1/2” mid of front of forearm. These injuries in the opinion of the - 4 - doctor were also simple in nature and caused by hard and blunt substance. Since all the injuries sustained by the informant and his bhabhi were simple in nature and caused by hard and blunt substance, the ingredients of offence under Section 307 I.P.C. do not appear to have been made out against the petitioner and others. In the written report there is also no mention that the accused persons had assaulted the informant and his bhabhi with such intention and knowledge and under such circumstances that if death had been caused the offence would have amounted to murder. Having given my anxious thoughts to the submissions advanced by the learned counsel for the petitioner, I am of the opinion that no offence either under Section 307 I.P.C. or Section 27 of Arms Act is made out so far as accused persons including the petitioner are concerned. The other offences including the one under Arms Act all are triable by the Magestrial Court. In the result, the impugned order is set aside and the application is allowed. The learned trial court is directed to transmit the case for trial to the learned Chief Judicial Magistrate under the provisions of Clause (a) of sub Section (1) of Section 228 Cr.P.C. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 11th day of May, 2009. Pradeep Srivastava/A.F.R.