Allahabad High Court
Shami Khan And Another vs State Of U.P. And Another on 1 February, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 1482 of 2023
Applicant :- Shami Khan And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ashok Kumar Mishra,Krishna Kant Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Ashok Kumar Mishra, learned counsel for the applicants and learned A.G.A. Perused the record.
This 482 application is being filed exploiting the plenary powers of this Court by challenging the order dated 17.9.2022 passed by the Chief Judicial Magistrate, Bijnor in Case No.253 of 2021, arising out of Case Crime No.1108 of 2019, u/s 323, 324, 504, 506, 308 I.P.C., Police Station-Kotwali City, District Bijnor.
Before coming to the merits of the case, it is desirable to spell out the factual matrix of this case, which is; initially the F.I.R. was got registered by one Imran u/s 323, 504, 506, 324, 308 I.P.C. against Sami Khan, Jeeshan and Jubair. The police after holding an in-depth probe into the matter and submitted charge sheet u/s 323, 504, 506, 324 I.P.C. on 28.5.2020, of which the learned Magistrate has taken cognizance vide order dated 5.1.2021. Thereafter, the applicants surrendered before the court and got themselves bailed out under the aforesaid sections of I.P.C.
Aggrieved by order dated 5.1.2021, the complainant has moved a criminal revision, having Criminal Revision No.20/2021 before the Session Judge and the Session Judge allowed the revision vide order dated 31.3.2022 and quashed the order dated 5.1.2021 whereby cognizance was taken against the applicants u/s 323, 504, 506, 324 I.P.C. and the Session Judge have remanded the matter back to the learned Magistrate for fresh consideration in the light of observations made in the revisional court's judgment.
After the matter was remanded back, the learned Magistrate has revisited the entire matter once again and have passed the impugned order dated 17.9.2022, whereby he has added Section 308 I.P.C. among pre-existing Sections 323, 324, 504, 506 I.P.C. of which he has already taken cognizance. Thus, factually the entire tussle is with regard to adding Section 308 I.P.C. only among pre-existing sections of the I.P.C. in which cognizance was already taken by the learned Magistrate. Now at this juncture this Court is only concern with as to whether the Magistrate concerned while passing the impugned order dated 17.9.2022 was justified in adding Section 308 I.P.C. or not?
At this juncture, to buttress his contention, learned counsel for the applicants has relied upon the judgment of Hon'ble Apex Court in State of Gujarat vs. Girish Radhakrishnan Varde, 2014 (3) SCC 659 and has emphasized upon its para-17, which is being extracted hereunder :
"17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or subtraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual observation by recording that the Trial Court at the appropriate stage will have the power to determine as to which provision is to be applied before the matter is finally sent for trial. .........."
I have perused the order impugned qua the aforesaid judgment of Hon'ble Apex Court and I find that the impugned order is well short the observations made by Hon'ble Apex Court in judgment of Girish Radhakrishnan Varde (supra). Under the circumstances, I have no hesitation to quash the impugned order, thus impugned order dated 17.9.2022 is hereby quashed only to the extent of adding Section 308 I.P.C. among pre-existing sections of I.P.C.
It is made clear that this Court is not closing the doors and windows of the court while framing of the charges. All the material shall be placed before the concerned court at the time of framing of the charge, who shall apply its independent judicial mind on the justifiability of Section 308 I.P.C. at that stage. This is an unfettered discretion and liberty to the court concerned whereby the prosecution shall place all material including the radilogical report, C.T. Scan report (if any) and the reports produced before this Court, so as to justify the order with regard to Section 308 I.P.C. only at the time of framing of charge.
In the event, the court concerned decides at the time of framing of charge that it is desirable to add Section 308 I.P.C. among pre-existing sections of I.P.C. then the applicant would have no other option but to surrender before the court and apply for bail u/s 308 I.P.C.
With this observation, the present application u/s 482 Cr.P.C. is hereby disposed of.
Order Date :- 1.2.2023
M. Kumar
