IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. App. No. 284 of 2009 With Stay App. No. 401/2009 Shahadat Hussain & others. …… Petitioners Versus State of Uttarakhand & another. ..…. Respondent Mrs. Pushpa Joshi, Advocate for the petitioners. Mr. H.C. Pujari, Addl.G.A. for the State/respondent no. 1. None for respondent no. 2. Hon’ble J.C.S. Rawat, J. Mrs. Pushpa Joshi, Advocate for the petitioners. Mr. H.C. Pujari, Addl.G.A. for the State/respondent no. 1. None for respondent no. 2. 2. With the consent of the parties, the petition is taken up today for final hearing and disposal. The petition is being disposed of at the motion hearing stage. 3. This is a petition filed by the petitioners u/s 482 Cr.P.C to quash & set aside the chargesheet, the summoning order dated 19.03.2009 passed by the learned Addl. C.J.M, Kashipur, Udham Singh Nagar in Criminal Case No. 415/09 titled as State Vs. Shahadat Hussain & others, and also to stay the entire proceedings of the aforesaid criminal case. 4. I have heard the learned counsel for the parties and perused the record. 5. In a nutshell, an F.I.R was lodged on 25.01.2009 by respondent no. 2/Ahsan Ali against the present petitioners to the effect that the petitioners on the fateful day abused them and also commit marpeet with them (respondent no. 2 and his brother) by lathi & danda. The injured persons were taken to the hospital where they were medically examined by the doctor. The doctor opined that the injuries received by the injured persons, was caused by the blunt object. The injured Mohd. Usman was advised for X-ray for his injuries. On 31.01.2009, the doctor reported in its supplementary report that as per the report of the radiologist, there was no bony injury on the person of Mohd. Usman. However, it is mentioned in the supplementary medical report dated 31.01.2009 that injury no. 1 is a head injury and grievous in nature whereas injury no. 2 is simple in nature. 6. It is pertinent to quote relevant portion of the chargesheet wherein the Investigating Officer has merely stated as under: “Jheku th eqdnek mijksDr esa vCk rd dh rekeh foospuk ls c;ku oknh xokgku Mk lkgc o p’enhn xokgku ds vfHkx.k eqdnek mijksDr ds f[kykQ tqZe /kkjk 324] 326] 323] 504 vkbZ ih lh c[kwch lkfcr gksrk gS ?kVuk dk laf{Ir fooj.k fuEu izdkj gS fn 25-1-09 dks oknh Jh ,glku vyh iq= dyqok gkth fu ljoj[ksMk Fkkuk dq.Mk us ,d fyf[kr rgjhj Fkkuk gktk ij dh ftlesa vk/kkj ij 324] 323] 504 vkbZ ih lh dk eqdnek iathd`r fd;k x;kA ftldh rQrh’k eq> ,l vkbZ dks nh x;h rks Mk lkgc dh lIyhesUVzh fjiksVZ ds vk/kkj ij /kkjk 324 dks xzfo;l bUtjh gksus ds dkj.k 326 /kkjk lIyhesUVzh fjiksVZ ds vk/kkj ij cMk nh x;hA mlds ckn /kkjk 324 esa vfHkx.k viuh tekur djk pqds gS tks tekur ij gS vfHkx.kksa ds f[kykQ vc rd dh rekeh oknh c;kukr o xokgku o p’enhn xokgku o Mk lkgc dh lIyhesUVzh fjiksVZ o c;kukr ds vk/kkj ij /kkjk 324] 323] 504 vkbZ ih lh dk vijk/k c[kwch lkfcr gksrk gSA” 7. The grievous injuries have been defined under Section 320 IPC. It is also stated in the supplementary medical report of the injured/Mohd. Usman that there is no bony injury or fracture on his person. 8. The learned counsel for the petitioners contended that the accused petitioners are already on bail u/s 324, 323 & 504 IPC in case crime no. 31/2009. The learned counsel for the petitioners contended that case u/s 326 IPC is not made out against the petitioners and they will have to surrender before the court concerned unnecessarily under the aforesaid section without any evidence on record. The learned counsel for the petitioners further insisted that the chargesheet to the extent of the offence u/s 326 IPC may be quashed and the trial may be directed to be proceeded u/s 324, 323 & 504 IPC only. The learned Addl. G.A could not demonstrate as to how an offence u/s 326 IPC is made out. 9. Keeping in view the facts & circumstances of the case and the contentions of the learned counsel for the parties, I feel that it is expedient in the interest of justice to dispose of the petition with a direction to the learned magistrate concerned that he will not take any coercive steps against the present petitioners namely, Shahadat Hussain, Sabir Hussain, Mohd. Umar & Noor Mohammad for obtaining bail u/s 326 IPC till charge is framed against them. 10. The learned counsel for the petitioners further contended that generally trial court doesn’t pass any speaking order during framing of the charge instead they simply framed the charge against the accused, hence in such a situation it would be very difficult for the accused petitioners to ask the trial court to pass a speaking order. It would be just and proper that the petitioners may move an application before the trial court or argue mentioning the grounds as to why the charge u/s 326 IPC is not made out against them. If the application so moved before the trial court prior to the framing of charge, the trial court/the learned magistrate will pass a speaking order as to whether the offence u/s 326 IPC is made out against the petitioners or not. However, the petitioners will appear before the court below on the date fixed. If the learned magistrate comes to the conclusion that the offence u/s 326 IPC is made out against the petitioners, he will be at liberty to frame charge against the petitioners and the petitioners will have to seek bail u/s 326 IPC. 11. In view of above, the petition is disposed of accordingly. Consequently, the stay application also stands disposed of accordingly. (J.C.S. Rawat, J.) 17.04.2009 V.K