State of U.P v. Ram Khelawan and another) whereby on an application given by the

1. Heard Sri Sumit Kumar Srivastava, Advocate holding brief of Sri Vyas Narayan Shukla, learned counsel for the revisionist, learned A.G.A. and perused the record.

2. In view of the facts stated in the affidavit filed in support of application for condonation of delay in filing this revision, delay is condoned. (Order on Revision)

1. Heard Sri Sumit Kumar Srivastava, Advocate holding brief of Sri Vyas Narayan Shukla, learned counsel for the revisionist, learned A.G.A. and perused the record.

2. By means of present revision under Section 397/401 of Cr.P.C. now under Section 438/442 of BNSS, 2023 the revisionist has challenged the validity of the order dated 22.11.2024 passed by Additional Chief Judicial Magistrate, Raebareli in Criminal Case No. 983/2024 (State of U.P. Vs. Ram Khelawan and another) whereby on an application given by the complainant, he has proceeded to amend the summoning order and added Section 304 of I.P.C.

3. It has been submitted by learned counsel for revisionists that a first information report was lodged on 17.12.2022 alleging that 4 named accused persons including revisionists were duly armed with Kulhari and Danda came to the door of the informant where her father in law was standing and they assaulted him due to which he received head injuries. It was further stated that father in law of the complainant was suffering from Cancer and accordingly with the aforesaid facts the first information report was lodged under Section 323, 504, 506 I.P.C., Police Station Unchahar, District Raebareli. The investigation was duly carried out and the charge-sheet was filed under Section 323, 504, 506 I.P.C.

4. At this stage, an application was filed under Section 190 of the Cr.P.C. by the complainant stating that the police in their investigation has omitted to chargesheet the accused persons under Section 302 I.P.C. and the facts which has come out in the investigation clearly indicate that the commission of offence u/s 302 I.P.C. and prayed for the accused to be summoned under other sections along with Section 302 I.P.C. The Additional Chief Judicial Magistrate, Raebareli had called for police report.

5. According to the police report, it was indicated that the deceased who died on 05.01.2023 was suffering from Cancer and was duly buried after his death and it is on the order of the District Magistrate, Raebareli that his body was exhumed and the the post mortem carried out. In the post mortem, the injuries which have been sustained by him prior to his death and also mentioned in the injury report were found to be corroborated but the medical report stated that the said injuries would not be cause of death of the deceased and the Investigating Officer relying on the medical opinion stated that Section 302 or 304 IPC is not made out in view of the medical opinion.

6. The Additional Chief Judicial Magistrate has considered the police report, post mortem report and the opinion of the Medical Officer. He took into the account the fact that the deceased received injuries on the vital part of his body which stood corroborated in the medical report and accordingly at this stage allegations under Section 304 IPC could not be ruled out and accordingly has added Section 304 IPC and summoned the revisionists by means of order dated 22.11.2024 which has been assailed in the present revision.

7. Learned counsel for revisionist has vehemently submitted that at the stage of summoning, the Magistrate was duty bound to look into the record as presented by the Investigating Officer containing all the statements and material therein and after application of his mind should have summoned the accused including the revisionists with regard to sections on which the charge-sheet was filed. Accordingly, he submits that at this stage summoning could not have been done U/S 302 IPC and accordingly has assailed the validity of the impugned order.

8. Learned A.G.A. on the other hand has opposed the revision. He has submitted that at the stage of summoning, the application of mind by the Magistrate is only on the ground as to whether any cognizable offence is disclosed in the investigation conducted by the police. He submits that even if the version of the revisionists is accepted, there is no doubt that offence under Sections 323, 504 & 506 of IPC was made out from the allegations and investigation conducted by the police and at the stage of summoning, it would not be relevant as to whether Section 304 IPC is added or not. He further submits that relevance of a particular section under which the revisionist are to face the trial would be considered at the stage of framing of charges and would not be relevant at the stage of summoning.

9. Accordingly, it has been submitted that no prejudice is caused to the revisionists at this stage and prayed for dismissal of the revision.

10. Having heard rival contentions. From the controverted facts, it is clear that initially the first information report was lodged U/S 323, 504 & 506 IPC and after instigation an application was given U/S 190 Cr.P.C. for a prayer to add section 302 IPC prior to summoning of the accused. The police was summoned wherein according to the medical report but the body of the deceased was exhumed was found to have been received injuries which were reported in the medical examination conducted before his death where two head injuries had been sustained by the deceased prior to his death.

11. At this stage, the trial court was of the view that the head injuries cannot be overlooked and such injuries being on the vital parts of the body which have been sustained in the said incident which finds mention even in the first information report, implication of Section 304 IPC cannot be ruled out. According to the various decisions of the Supreme Court as well as this Court, a discretion is vested with the Magistrate at the stage of summoning which is to be exercised after looking into the record which is in the form of the charge-sheet filed by the police.

12. In the present case, from the charge-sheet and police report clearly disclosed that deceased has sustained head injuries prior to his death which was corroborated in the medical report. It is in the aforesaid circumstances that the trial court had issued summons even under Section 304 IPC. From the material on record, it is clear that the post mortem report also discloses the injuries and whether the said injuries were sufficient to cause death or Section 304 is made out or not would be a matter which can be considered subsequent to the stage of trial. At this stage, this Court does not find any infirmity in the impugned order inasmuch as the trial court has looked into the entire material and the findings recorded by him cannot be said to be perverse or contrary to the records.

13. Accordingly, this Court does not find merit in the challenge made to the order dated 22.11.2024. It shall be open for the revisionists to raise objections at the relevant stage i.e. at the stage of framing of charges with regard to incorporation of Section 304 of the I.P.C. but at this stage no interference can be made. Accordingly, subject to the aforesaid, the revision is devoid of merits and is hereby dismissed. (Alok Mathur, J.) Order Date :- 24.4.2025 Ravi/ RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Sumit Kumar Srivastava, Advocate holding brief of Sri Vyas Narayan Shukla, learned counsel for the revisionist, learned A.G.A. and perused the record.

2. In view of the facts stated in the affidavit filed in support of application for condonation of delay in filing this revision, delay is condoned. (Order on Revision)

1. Heard Sri Sumit Kumar Srivastava, Advocate holding brief of Sri Vyas Narayan Shukla, learned counsel for the revisionist, learned A.G.A. and perused the record.

2. By means of present revision under Section 397/401 of Cr.P.C. now under Section 438/442 of BNSS, 2023 the revisionist has challenged the validity of the order dated 22.11.2024 passed by Additional Chief Judicial Magistrate, Raebareli in Criminal Case No. 983/2024 (State of U.P. Vs. Ram Khelawan and another) whereby on an application given by the complainant, he has proceeded to amend the summoning order and added Section 304 of I.P.C.

3. It has been submitted by learned counsel for revisionists that a first information report was lodged on 17.12.2022 alleging that 4 named accused persons including revisionists were duly armed with Kulhari and Danda came to the door of the informant where her father in law was standing and they assaulted him due to which he received head injuries. It was further stated that father in law of the complainant was suffering from Cancer and accordingly with the aforesaid facts the first information report was lodged under Section 323, 504, 506 I.P.C., Police Station Unchahar, District Raebareli. The investigation was duly carried out and the charge-sheet was filed under Section 323, 504, 506 I.P.C.

4. At this stage, an application was filed under Section 190 of the Cr.P.C. by the complainant stating that the police in their investigation has omitted to chargesheet the accused persons under Section 302 I.P.C. and the facts which has come out in the investigation clearly indicate that the commission of offence u/s 302 I.P.C. and prayed for the accused to be summoned under other sections along with Section 302 I.P.C. The Additional Chief Judicial Magistrate, Raebareli had called for police report.

5. According to the police report, it was indicated that the deceased who died on 05.01.2023 was suffering from Cancer and was duly buried after his death and it is on the order of the District Magistrate, Raebareli that his body was exhumed and the the post mortem carried out. In the post mortem, the injuries which have been sustained by him prior to his death and also mentioned in the injury report were found to be corroborated but the medical report stated that the said injuries would not be cause of death of the deceased and the Investigating Officer relying on the medical opinion stated that Section 302 or 304 IPC is not made out in view of the medical opinion.

6. The Additional Chief Judicial Magistrate has considered the police report, post mortem report and the opinion of the Medical Officer. He took into the account the fact that the deceased received injuries on the vital part of his body which stood corroborated in the medical report and accordingly at this stage allegations under Section 304 IPC could not be ruled out and accordingly has added Section 304 IPC and summoned the revisionists by means of order dated 22.11.2024 which has been assailed in the present revision.

7. Learned counsel for revisionist has vehemently submitted that at the stage of summoning, the Magistrate was duty bound to look into the record as presented by the Investigating Officer containing all the statements and material therein and after application of his mind should have summoned the accused including the revisionists with regard to sections on which the charge-sheet was filed. Accordingly, he submits that at this stage summoning could not have been done U/S 302 IPC and accordingly has assailed the validity of the impugned order.

8. Learned A.G.A. on the other hand has opposed the revision. He has submitted that at the stage of summoning, the application of mind by the Magistrate is only on the ground as to whether any cognizable offence is disclosed in the investigation conducted by the police. He submits that even if the version of the revisionists is accepted, there is no doubt that offence under Sections 323, 504 & 506 of IPC was made out from the allegations and investigation conducted by the police and at the stage of summoning, it would not be relevant as to whether Section 304 IPC is added or not. He further submits that relevance of a particular section under which the revisionist are to face the trial would be considered at the stage of framing of charges and would not be relevant at the stage of summoning.

9. Accordingly, it has been submitted that no prejudice is caused to the revisionists at this stage and prayed for dismissal of the revision.

10. Having heard rival contentions. From the controverted facts, it is clear that initially the first information report was lodged U/S 323, 504 & 506 IPC and after instigation an application was given U/S 190 Cr.P.C. for a prayer to add section 302 IPC prior to summoning of the accused. The police was summoned wherein according to the medical report but the body of the deceased was exhumed was found to have been received injuries which were reported in the medical examination conducted before his death where two head injuries had been sustained by the deceased prior to his death.

11. At this stage, the trial court was of the view that the head injuries cannot be overlooked and such injuries being on the vital parts of the body which have been sustained in the said incident which finds mention even in the first information report, implication of Section 304 IPC cannot be ruled out. According to the various decisions of the Supreme Court as well as this Court, a discretion is vested with the Magistrate at the stage of summoning which is to be exercised after looking into the record which is in the form of the charge-sheet filed by the police.

12. In the present case, from the charge-sheet and police report clearly disclosed that deceased has sustained head injuries prior to his death which was corroborated in the medical report. It is in the aforesaid circumstances that the trial court had issued summons even under Section 304 IPC. From the material on record, it is clear that the post mortem report also discloses the injuries and whether the said injuries were sufficient to cause death or Section 304 is made out or not would be a matter which can be considered subsequent to the stage of trial. At this stage, this Court does not find any infirmity in the impugned order inasmuch as the trial court has looked into the entire material and the findings recorded by him cannot be said to be perverse or contrary to the records.

13. Accordingly, this Court does not find merit in the challenge made to the order dated 22.11.2024. It shall be open for the revisionists to raise objections at the relevant stage i.e. at the stage of framing of charges with regard to incorporation of Section 304 of the I.P.C. but at this stage no interference can be made. Accordingly, subject to the aforesaid, the revision is devoid of merits and is hereby dismissed. (Alok Mathur, J.) Order Date :- 24.4.2025 Ravi/ RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench