Crl. Misc. No. M – 2509 of 2010 v. State of Haryana & Ors.

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sanjiv Bansal, Advocate, for the petitioner. Gurdev Singh, J (oral) Vinod Kumar-petitioner has come up with this petition under Section 482 of the Code of Criminal Procedure invoking the inherent jurisdiction of this Court for quashing the order dated 15.5.2008 (Annexure P-1) passed by Sub Divisional Judicial Magistrate, Assandh and order dated

5.12.2009 (Annexure P-2) Passed by Additional Sessions Judge Karnal and for making an order adding offence under Section 307 IPC in Criminal Case No. 41 of 2007 pertaining to FIR No. 209, dated 28.5.2004, registered under Sections 323, 325 and 34 IPC, at Police Station Assandh and pending in the court of Sub Division Judicial Magistrate, Assandh. The petitioner lodged the above said FIR , after he was mercilessly beaten by the respondents No. 2 and 3 thereby causing bodily injuries including head injuries. He was immediately taken to CHC Assandh, where he was medico legally examined by Dr. S.K.Nagpal, medicial Officer. He was advised X-Ray for his head injuries. He was Crl. Misc. No. M – 2509 of 2010 -2- referred to Trauma Centre, General Hospital, Karnal, after giving first aid. He was examined by Dr. Adeshwar and X-Ray was conducted by Dr. Iqbal Singh, Radiologist. Dr. Adeshwar declared injury No.2 on his person as grievous vide his report dated 29.5.2004. An application was moved by the petitioner before Sub Divisional Magistrate Karnal, to get himself medically examined from a Board and to give opinion regarding the injuries as detailed in the M.L.R. The Chief Medical Officer of the Hospital directed the Principal Medical Officer to form a Board and to give its opinion regarding injury No.2. That Board opined that the said injury is dangerous to life, as it was a compound fracture of skull. The petitioner moved an application under Section 173(8) of the Code, with the prayer that the case be sent to the police for further investigation. That application was contested by the respondents No. 2 and 3/accused. In their reply they denied the contentions of the petitioner and pleaded that the petitioner was never examined by the Board of Doctors and that the opinion of the Board was based on conjectures and surmises. After hearing learned counsel for both the sides, the Sub Division Judicial Magistrate, Assandh, dismissed the application vide order dated 15.5.2008. The petitioner preferred a revision against that order which was dismissed by the Additional Sessions Judge Karnal, vide order dated 5.12.2009. The petitioner has pleaded in the present petition that after the X- Ray examination, Dr. Adeshwar advised his brother to take him to the house on the ground that he was quite well. He was not feeling well due to serious head injury and was not capable of sitting properly and was feeling severe Crl. Misc. No. M – 2509 of 2010 -3- pain in the head. Doctor was requested not to discharge him, who demanded Rs.5000/- from his brother and under compelling circumstances he was forced to pay Rs.2000/- . The police and the Doctor colluded with the respondents and to save them from rigorous punishment under Section 307 IPC, the Doctor described injury No.2 only as grievous in nature by observing that no major life saving procedure was done on the petitioner. That doctor to help the respondents for getting bail from the Court, changed the opinion by mentioning that the injury was not dangerous to life. After he was medico legally examined by the Board and the opinion has been given by the Board regarding the nature of the injury the offence punishable under Section 307 IPC is liable to be added in the charge-sheet. I have heard learned counsel for the petitioner. By relying upon Sakiri Vasu Vs. State of Uttar Pradesh And Others, 2008(2) S.C.C 409, it was submitted by learned counsel for the petitioner that once it was brought to the notice of the Magistrate that the injury on the person of the injured was found to be dangerous to life, he was to order re-opening of the investigation. If he was not to make such an order at least he was bound to take cognizance of the offence punishable under Section 307 IPC, which was also made out against the accused. He was to proceed accordingly. It is very much clear from the order of the trial Court that the challan has already been presented against the accused and the case is at the stage of prosecution evidence. It was observed by that Court that at this stage further investigation cannot be ordered. It was held in the above said Crl. Misc. No. M – 2509 of 2010 -4- ruling by the Apex Court that the power of the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report under Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report. The only contention of the petitioner is that after the Board of Doctors was constituted a report was submitted by that Board that injury No.2 on the person of the petitioner was dangerous to life. There was no question of making an order re-opening the investigation by the trial Court on the grounds mentioned in the application by the petitioner. The investigation includes collecting of evidence. In this case there was no ground for collecting further evidence as the said opinion of the Board of Doctors is to be included in the evidence already collected. It was made very clear by the trial Court in its order that this evidence of the medical report can be produced in the course of trial as per law and the same can be appreciated as per the law to take further action in the matter. Instead of producing that evidence before the trial Court, the petitioner has come up with the present petition. There is no ground for invoking the inherent jurisdiction of this Court. The petition is dismissed accordingly. March 3, 2010 tripti (Gurdev Singh) Judge