Criminal Revision No.1048 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1048 of 2010 Date of decision:-16.5.2011 Shiv Dayal and another ...Petitioners Versus State of Haryana and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. J.S. Mehandiratta, Advocate for the petitioners. Mr. P.S. Virk, DAG Haryana for respondent No.1-State. Mr. Hemant Bassi, Advocate for respondent No.2. RITU BAHRI J. The petitioners are aggrieved by the order dated 26.2.2010 passed by the Judicial Magistrate 1st Class, Yamuna Nagar at Jagadhri vide which he has committed the case in FIR No.37 dated 10.3.2002 under Sections 452,324,326 and 506 IPC read with Section 34 IPC, registered at Police Station Chhappar to the Court of Sessions for trial under Section 307 IPC. The dispute relates to the partition of land between petitioner No.1 and his brother Shiv Kumar. On 09.3.2002 petitioner No.2 received injuries at the hands of Shiv Kumar and others. The FIR No.37 dated 10.3.2002 under Sections 452,324,326 and 506 IPC read with Section 34 IPC, was registered at Police Station Chhappar against the present petitioners. A cross version was registered against Shiv Kumar for causing injuries to petitioner No.2. As per report under Section 173 Cr.P.C. challan was presented against the petitioners Criminal Revision No.1048 of 2010 -2- under Sections 452,324,326 and 506 IPC read with Section 34 IPC. The opinion was sought from the Dr. Mahavir Goyal on 18.3.2002 that injuries were grievous in nature but not dangerous to life. Vide order dated 24.1.2003 the Judicial Magistrate 1st Class, Jagadhri committed the case to the Court of Sessions by holding that offence under Section 307 IPC was made out. A revision was filed. Vide order dated 14.10.2003 (Annexure P-2) the Revisional Court set aside the order dated 24.1.2003 holding that no offence under Section 307 IPC is made out. This order was challenged in the High Court in Criminal Revision No.694 of 2004 and State of Haryana had also filed Criminal Revision No.372 of 2004. This revision was disposed of on 3.9.2008 by holding that in the absence of any material and medical opinion, no offence under Section 307 IPC is made out. It was observed that it would be open to the trial Court to add the aforesaid section in case any such evidence brought on record. An application dated 04.12.2009 (Anneuxre P-4) was moved seeking amendment of charge and to add Section 307 IPC. This application was dismissed by the Judicial Magistrate 1st Class vide order dated 11.12.2009 (Annexure P-5). The revision against this order was dismissed by the Court of Sessions Judge on 08.1.2010 (Annexure P-6). An observation was made in para No.15 of the said order that if after hearing the arguments on merits an offence under Section 307 IPC is made out, it will require commitment to the Court of Sessions. The petitioners are aggrieved by the order dated 26.2.2010 whereby the Magistrate has committed the matter to the Court of Sessions by holding that the offence under Section 307 IPC is made out. Mr. J.S. Mehandiratta, counsel for the petitioners has vehemently argued that the impugned order is liable to be set aside as no new evidence has come on record. Once the application was dismissed vide order dated 11.12.2009, no new facts were brought on record and there was a complete bar Criminal Revision No.1048 of 2010 -3- as per mandate of Section 362 Cr.P.C. whereby the Magistrate could not review its own order dated 11.12.2009. Relies on judgment of Calcutta High Court in Ramesh Chandra Biswas versus The State and another 1994 Crl.L.J. 1134 to contend that once the Magistrate had rejected the application of investigating officer for addition of charges subsequently same prayer cannot be allowed by the Magistrate vide order dated 11.12.2009 after examining Dr. Mahavir Goyal at length and also cross-examined at length. He has stated that the injuries were grievous in nature and not dangerous to life except injury on the skull. Remaining injuries were on non-vital parts of the body. The charges were framed vide order dated 03.11.2003 and in view of the opinion of Dr. Mahavir Goyal, the application was dismissed. The revision against this order was dismissed on 08.1.2010 after observing that the order is not suffering from any illegality or error. Mr. Hemant Bassi, counsel for respondent No.2 on the other hand argued that as per Section 216 Cr.P.C. the Judicial Magistrate has ample power to alter the charge at any stage of the trial. In the impugned order dated 26.2.2010 reference is being made to the testimony of Shiv Kumar in which he has stated that Shiv Dayal inflicted a Barchha blow on his head. In order to save himself he raised right hand, which resulted in the severing on his thumb. Thereafter, Ram Kumar inflicted gandasi blow on his hand and thereafter the accused kept on giving him blows on his head. As per the testimony of Shiv Kumar, the trial Court has committed the matter to the Sessions Court by adding Section 307 IPC. After coming to the concludion that there was commission of an act with intention to cause death by the accused. I have heard learned counsel for the parties and have gone through the case file and the impugned order minutely. The order dated 26.2.2010 is liable to be set aside on the ground Criminal Revision No.1048 of 2010 -4- that the trial Court had considered and declined the application on 11.12.2009 by observing that the opinion of the Dr. Mahavir Goyal was that the injury on the skull is not dangerous to life. The order dated 26.2.2010 has not considered this report of the doctor dated 18.3.2002 at all. Undisputedly, this is a case of fight in the cross case, which was registered against the petitioners. Both the parties suffered injuries and there is no finding in the impugned order as to who was the aggressor party. The MLR was considered by the trial Court while passing the order dated 11.12.2009 alongwith the opinion of Dr. Mahavir Goyal. It is not disputed that injuries were suffered by the complainant-respondent. In view of the medical opinion, the observation of the trial Court that while inflicting the injuries on the complainant, there was an intention to kill is not sustainable. The injuries suffered by the respondents are not disputed. It is not disputed that the legal opinion given by the doctor is also correct. On the earlier occasion the Magistrate had committed the case to the Sessions under Section 307 IPC vide order dated 24.1.2003. This order was set aside by the learned Sessions Judge, Yamuna Nagar vide detailed speaking order dated 14.10.2003 (Annexure P-2). In view of the above, the criminal revision is allowed and the impugned order dated 26.2.2010 passed by the Judicial Magistrate 1st Class, Yamuna Nagar at Jagadhri vide which he has committed the case in FIR No.37 dated 10.3.2002 under Sections 452,324,326 and 506 IPC read with Section 34 IPC, registered at Police Station Chhappar to the Court of Sessions for trial under Section 307 IPC, is hereby set aside. 16.5.2011 ( RITU BAHRI ) Vijay Asija JUDGE