SCR.A/7420/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 74 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GIDHABHAI BHIKHABHAI & 6 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= = Appearance : MR SP MAJMUDAR for Applicant(s) : 1 – 7. MR YJ PATEL for Applicant(s) : 1 - 7. MR RC KODEKAR, APP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, MR VAIBHAV A VYAS for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/09/2008 ORAL JUDGMENT SCR.A/7420/2008 2/6 JUDGMENT 1. By way of this application the applicants-original accused have prayed for an appropriate writ, order or direction quashing and setting aside the order dated 10/12/2007 passed by the learned Judicial Magistrate First Class, Chotila in Criminal Case No. 345/2006 below Exh. 20 by which the learned Judicial Magistrate First Class, Chotila has passed an order to add the charge for the offence under Section 307 of the Indian Penal Code. 2. An F.I.R. came to be lodged against the applicants- original accused at Thangadh Police Station, District Surendranagar being Crime Register No. I – 0011/2006 for the offences punishable under Sections 143, 144, 147, 148, 149, 307, 325, 323, 504, 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act. 3. It appears from the proceedings that the concerned Police Officer of the Thangadh Police Station submitted a report before the learned Judicial Magistrate First Class, Chotila for deleting Section 307 of the Indian Penal Code and for adding Section 324 of the Code of Criminal Procedure and the learned Judicial Magistrate First Class, Chotila passed an order to keep the same with the F.I.R., and, thereafter, after submission of the chargesheet, case was registered as Criminal Case No. 345/2006, and a charge also came to be framed by the learned Judicial Magistrate First Class, Chotila and no charge for the offence under Section 307 of the Indian Penal Code was framed by the learned Judicial Magistrate First Class, Chotila. It appears that thereafter respondent no. 2-original complainant submitted an application, Exh. 20 requesting the learned Judicial Magistrate First Class, Chotila to frame the charge for SCR.A/7420/2008 3/6 JUDGMENT the offence under Section 307 of the Indian Penal Code and by the impugned order, the learned Judicial Magistrate First Class, Chotila passed an order to add the offence under Section 307 of the Indian Penal Code. Being aggrieved and dissatisfied with the order passed by the learned Judicial Magistrate First Class, Chotila dated 10/12/2007 below Exh. 20 in Criminal Case No. 345/2006, the applicants-original accused have preferred the present Special Criminal Application under Article 227 of the Constitution of India. 4. Shri S.P. Majmudar, learned advocate appearing on behalf of the applicants-original accused has vehemently submitted that alteration of the charge by adding Section 307 of the Indian Penal Code in Criminal Case No. 345/2006 is without jurisdiction. It is submitted that the learned Magistrate has no jurisdiction to try the case for the offence under Section 307 of the Indian Penal Code and, therefore, the learned Magistrate has no jurisdiction to frame the charge, which is not triable by him. It is submitted that the impugned order has been passed by the learned Judicial Magistrate First Class, Chotila without considering the provisions of Section 323 of the Code of Criminal Procedure. It is submitted that even otherwise on merits also no case for the offence under Section 307 of the Indian Penal Code is made out, and, therefore, it is requested to allow the present application. 5. The application is opposed by Shri Vaibhav Vyas, learned advocate appearing on behalf of respondent no. 2-original complainant by submitting that it is ultimately the subjective satisfaction of the Court, if on evidence it is found that a case for the offence under Section 307 of the Indian Penal Code is SCR.A/7420/2008 4/6 JUDGMENT made out, the Court may at any stage alter the charge and, therefore, no illegality has been committed by the learned Judicial Magistrate First Class, Chotila by adding the charge for the offence under Section 307 of the Indian Penal Code. It is submitted that on merits a case for the offence under Section 307 of the Indian Penal Code is made out as injury was caused by the applicants-original accused on the vital part of the body and, therefore, no illegality has been committed by the learned Judicial Magistrate First Class, Chotila in adding and framing the charge under Section 307 of the Indian Penal Code and, therefore, it is requested to dismiss the present Special Criminal Application. 6. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that initially when the F.I.R. was filed, the same was for the offence under Section 307 of the Indian Penal Code. However, subsequently, the concerned Police Officer of Thangadh Police Station submitted a report before the learned Judicial Magistrate First Class for deleting Section 307 of the Indian Penal Code and to add Section 324 of the Code of the Criminal Procedure and the learned Judicial Magistrate First Class, Chotila passed an order to keep the same with the F.I.R., and thereafter, chargesheet came to be filed, before the learned Judicial Magistrate First Class, Chotila, not for the offence under Section 307 of the Indian Penal Code. Subsequently, on an application submitted by the respondent no. 2-original complainant, learned Judicial Magistrate First Class, Chotila passed an order to alter the charge by framing the charge for the offence under Section 307 of the Indian Penal Code. It appears that the same is without jurisdiction and without SCR.A/7420/2008 5/6 JUDGMENT following the due procedure as contemplated under Section 323 of the Code of Criminal Procedure. It cannot be disputed that the offence under Section 307 of the Indian Penal Code is triable by the learned Sessions Court and the learned Judicial Magistrate First Class has no jurisdiction to try the offence under Section 307 of the Indian Penal Code. Considering Section 323 of the Code of Criminal Procedure if, during inquiry into an offence or a trial before the Magistrate, it appears to him at any stage of the proceedings before signing the judgement that the case is one which ought to be tried by the Court of Sessions, he shall, commit it to that Court. 7. Under the circumstances, if the learned Judicial Magistrate First Class, Chotila was of the opinion that a case is made out for the offence under Section 307 of the Indian Penal Code, then proper procedure for him was to commit the case to the learned Court of Sessions and it ought to have been left to the learned Sessions Court to frame the charge for the offence under Section 307 of the Indian Penal Code. Under the circumstances, it appears that the learned Judicial Magistrate First Class has not followed the due procedure as required under Section 323 of the Code of Criminal Procedure. Under the circumstances, only on this ground, the impugned order passed by the learned Judicial Magistrate First Class, Chotila below Exh. 20 in Criminal Case No. 345/2006 deserves to be quashed and set aside and the matter is to be remanded to the learned Judicial Magistrate First Class, Chotila to follow the appropriate procedure, as required under Section 323 of the Code of Criminal Procedure. If the learned Judicial Magistrate First Class is of the opinion that a case is made out for the offence under Section 307 of the Indian Penal Code, in that SCR.A/7420/2008 6/6 JUDGMENT case, he is required to commit the case to the learned Sessions Court, Surendranagar as the offence under Section 307 is triable by the Court of Sessions. 8. Under the circumstances, for the reasons stated hereinabove, the impugned order passed by the learned Judicial Magistrate First Class, Chotila below Exh. 20 in Criminal Case No. 345/2006 is hereby quashed and set aside and the matter is remanded to the learned Judicial Magistrate First Class, Chotila to follow the procedure as required under Section 323 of the Code of Criminal Procedure as observed hereinabove. 9. However, it is observed that this Court has not expressed any opinion on merits in favour of either parties and it is ultimately for the learned Judicial Magistrate First Class, Chotila to commit the case to the learned Sessions Court, Surendranagar, if he is of the opinion that the offence under Section 307 of the Indian Penal Code is made out. Rule is made absolute to the aforesaid extent. (M.R. SHAH, J.) siji