Prakash vs State of M.P.

Fakhruddin, J.

This revision is directed against the order dated 2.9.1999, passed by the Second Addl. Sessions Judge, Dabra, in S.T. No. 269/99, whereby the learned Judge has framed the charges against the Petitioner/accused for the offence u/s 302 and in the alternative u/s 302/34 of I.P.C., after hearing both the parties.

As per the proosecution-story, the incident had occurred on 25.2.1999, while complainant Raghvendrasingh with his brother was standing at the bus-stand, at that moment, it is alleged that accused Gajendra Mudgal @ Banti and Jaisingh s/o Rontesh, r/o Usha Colony, came there and after some talks with his brother Pappu, they had taken Pappu away on the scooter No. 07-KB 2421, towards Govt. School. When the complainant got some apprehension because of the enmity which formed hardly two days before the date of incident, between his brother Pappu and the accused-persons, he started to chase the vehicle. He found that at the School-gate, the scooter was stopped by one Prakash (present applicant) and then Jaisingh took out his katta and fired at Pappu which hit below his shoulder, causing injuries. Thereafter, accused Gajendra Mudgal fired by his katta, which hit on his temple, resulting in he died. The report of the incident was lodged by the complainant alongwith one Suresh Singh at the police station, on the basis of which crime was registered against the accused-persons and the investigation started. After due investigation, the challan was filed against the accused-persons before the Court. The learned trial Court after considering the entire material and the evidence on the record, found that the offence has been committed by the accused, as such they have been charged for this alleged offence.

Learned Counsel for the Petitioner/accused stated that the court-below was not justified in framing the charge against the Petitioner/accused. He submitted that it was Jaisingh and Gajendra, who had fired and the allegation appearing against the present Petitioner is that of stopping the vehicle. He stated that even according to the prosecution case itself, so far as present-Petitioner is concerned, the offence at the most can be said to have been made u/s 302/34 of I.P.C. and not for the substantive offence u/s 302 of I.P.C. Learned Counsel for the Petitioner further submitted that it was the duty of the prosecutor to have pointed out the prosecution case and had that been done, the court would not have come to such a conclusion. Learned Counsel for the Petitioner referred to Section 226 Code of Criminal Procedure which runs as under-

Opening Case for Prosecution. When the accused appears or is brought before the court in pursuance of a commitment of the case u/s 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence lie proposes to prove the guilt of the accused.

Shri Vivek Tankha, learned Advocate General for the State, submitted that normally the -prosecutor contends the case as per requirement of Section 226 Code of Criminal Procedure He stated that might be in some cases this practice is not followed. He stated that due instructions shall be issued.

So far as the material in the instant case regarding framing of the charge is concerned, it is pertinent to quote the F.I.R. lodged by the complinant Raghvendra Singh. It reads as under-

FIRST INFORMATION REPORT

A perusal of the F.I.R. goes to show that so far as the offence against the present Petitioner is concerned, it, prima facie, will be u/s 302/34 of I.P.C., on the basis of material on record and not for substantive u/s 302 of I.P.C.

In view of what has been stated above, the revision is allowed. The charge for the substance offence u/s 302 of IPC framed against he Petitioner/accused, by the impugned order, so far he is concerned, is quashed, and instead the matter is remanded back to the trial Court to re-hear both the parties and frame the charges in accordance with the provisions of Sections 211 and 212 of the CrI.P.C., containing such particulars as to the time and place of the alleged offence and the persons (if any) against whom or the thing (if any), in respect of which, it was committed.

As learned Counsel for the parties submitted that one of the accused namely Jai Singh is in jail-custody from March, 1999 and requested for direction of early decision, it is directed that the trial court shall decide the matter as early as possible, subject to due cooperation of both the parties.