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Judgment
This application under Section 482 of the Cr.P.C. has
been filed for quashing the order dated 22.11.2014 passed by learned
Additional Sessions Judge- II, Jamui, in Sessions Trial No. 436 of
2013 arising out of Sikandra Police Station Case No. 134 of 2012
dated 04.07.2012 instituted for the offences punishable under Sections
147, 323, 324, 447 and 504 of the Indian Penal Code by which the
application filed under Section 227 of Cr.P.C. for discharging them
has been rejected.
Briefly stated, the prosecution case, as stated in the
FIR instituted on 04.07.2012, is that on fateful day all the accused
persons came with lathi, Khanti, Paina and abused informant and
claimed that land of informant belongs to petitioners.
It is further alleged that accused persons also assaulted
his wife and when informant and his daughter went to save her, all the
accused persons assaulted informant and his daughter.
On investigation and supervision by the higher Police
Officials, it was found that offences under Sections 341, 323, 308,
447, 504 read with 34 of I.P.C . are made out against the petitioners
and charge sheet No. 164 dated 23.07.2012 was submitted by the
police, upon which cognizance was taken against the petitioners by
the trial court and case was committed to the court of Session.
A petition under Section 227 of Cr.P.C. was filed by
the petitioners before the Trial Court stating therein that allegations as
made in the FIR are false and they have been falsely implicated in this
case. It has further been submitted by them that the injuries as
reported are simple in nature and, therefore, no offence against the
petitioners are made out and, as such, they be discharged. It has been
further contended that no offence under Section 308 of I.P.C. is made
out and as such case be remitted to the Court of Chief Judicial
Magistrate as case is a warrant case.
After hearing both the parties, the court of Additional
Sessions Judge rejected the petition filed by the petitioners under
Section 227 of Cr.P.C. on the ground that there are sufficient
materials on the record against accused persons for framing of charge.
The court below has also held that offence under Section 308 of I.P.C.
is also made out against the petitioners on the basis of evidences
collected and statement of witnesses made during investigation. The
court below has held that accused petitioners variously armed with
lathi, paina and Khanti assaulted the informant and his family
members and also abused them when informant claimed that the land
belongs to him. All the witnesses have supported the case of
informant. From the injury report, all the injuries are said to be simple
in nature but some is on the vital parts of the body. The weapons used
were also sharp as well as blunt substance, as such, there are sufficient
evidence for framing charge under Section 308 of I.P.C. and,
thereafter, the court below rejected the petition of petitioners and
directed them to be personally present for framing of charge.
The Apex Court in its judgment and order as reported
in 2012 (9) SCC 460 in para 17 held as under:-
Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code.
Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
Under the facts and circumstances of this case and in
view of law laid down by Apex Court, I am not inclined to interfere
with the order passed by the trial court dismissing the discharge
petition of petitioners and framing of charge against accused
petitioners.
The Petition stands dismissed.