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Judgment
The factual matrix being the same, but different legal consideration arising for adjudication in two revision petitions; because of commonality in the factual matrix the two are being decided together.
Govind Johari is aggrieved by Gopal Johari (his brother) being discharged for having committed an offence punishable under Section 307 IPC vide impugned order dated February 17, 2006 passed by the learned Court of Sessions, requiring the charge-sheet to be transmitted to the Court of the learned Magistrate with a direction to the learned Magistrate to frame the appropriate charges keeping in view the findings returned and observations made by the Court of Sessions.
The grievance of Gopal Johari is to the learned Court of Sessions directing the learned Magistrate to frame the charges. As per him the charges had to be framed by the Court of Sessions.
As per the impugned order discharging Gopal Johari for the offence punishable under Section 307 IPC, the learned Magistrate would have to consider whether the charges have to be framed for offences punishable under Section 324, 427 and 504
IPC.
As per the complaint which resulted in registration of the FIR and statements of the witnesses which were recorded, the case of the prosecution laid for trial would be that on January 27, 2005 at about 3.15 PM when Govind Johari was in his house C-7, Prithviraj Road and was in the company of his friends and relatives, the accused Gopal Johari entered his house and started abusing him. He branded a revolver and threatened to kill him and his family members. He broke the windowpane, picked up a piece of glass and assaulted Govind Johari. The injury caused has been opined to be a simple injury. This aspect has been noted by the learned Court of Sessions to bring home the point that the overt act in question would not attract the offence punishable under Section 307 IPC and emphasis has been laid on the nature of the injury caused.
Learned counsel for Govind Johari cites AIR 1983 SC 305, State of Maharashtra Vs. Balram Bama Patil & Ors. to urge that for a conviction under Section 307 IPC it is not essential that bodily injury caused was capable of causing death. It is the intention which has to be seen.
The said judgment cited itself highlights that although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even, in some cases, be ascertained without any reference at all to actual wounds. In said case during the election proceedings an unlawful assembly, armed with guns, axes and sticks had assaulted one person who died at the spot.
Some have received non-grievous injuries. With reference to those victims the Supreme Court was looking at the issue whether acquittal of some of the accused for offences punishable under Section 307 IPC, merely with reference to the injuries was sustainable.
Learned counsel also cites the decision reported as JT 2009(6) SC 166, Ratan Singh Vs. State of M.P. & Anr. to bring the same point.
In the instant case, it is prima facie apparent that Gopal Johari entered the house of Govind Johari to settle some business related family dispute. As per allegation against him he branded a revolver but did not fire nor use the same as a weapon of offence to hit. The windowpane which was broken was used by him to pick up a piece of glass and then assault his brother. The nature of the weapon of offence coupled with injuries caused, the contemporaneous utterances completely rule out the intention to cause death by a brother of a brother. The impugned order insofar it discharges Gopal Johari for having committed an offence punishable under Section 307 IPC is correct.
As regards whether the learned Court of Sessions should have framed the charge or not, Section 228 Cr.P.C. reads as under:-
"228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
The word used is "may". It means that a Court of Sessions has the discretion to frame the charge or not to frame the charge.
From the nature of the discussion in the impugned order, it is apparent that the Court of Sessions was concerned with whether a charge under Section 307 IPC was made out for the reason if none could be made out the Court of Sessions was clear in its mind that qua the rest the consideration has to be by the learned Magistrate.
Under the circumstances, I do not fault the learned Court of Sessions in not framing a charge for offences punishable under Sections 324, 427 and 504 IPC. The learned Court of Sessions has correctly opined that it would be for the learned Magistrate to look into this aspect.
The result being that both the revision petitions deserve dismissal. Both are dismissed.