Crl. Revision No. 286 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Revision No. 286 of 2010 (O&M) Date of Decision : 19.10.2011 Israil & others .......... Petitioners Versus State of Haryana ...... Respondent CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. G.S. Gandhi, Advocate for the petitioners. Mr. Shekhar Mudgal, AAG, Haryana. Mr. Sarfraj Hussain, Advocate for the complainant. **** AUGUSTINE GEORGE MASIH, J. Challenge in this revision petition is to the order dated 4.11.2009 framing the charges against the petitioners for offences punishable under Sections 323, 324, 452, 307 read with Section 149 IPC. The primary contention of the counsel for the petitioners is that the charge of Section 307 IPC has been framed by the trial Court on the ground that as per the opinion of the doctor, injury No.1 on the person of Safeda was to be assessed on the basis of report of the forensic expert, as to whether it was dangerous to life or not, but the same doctor gave his opinion on 27.9.2006, on the application moved by the police that the possibility of this injury No.1 to be dangerous to life could not be ruled out. There was fracture of the right temporal bone of head of the injured and on an application filed by the petitioners before the trial Court dated 7.10.2006 for calling injured Safeda for medical opinion by a Board of doctors, was allowed vide order dated 12.10.2006 by the Sub Divisional Magistrate, Crl. Revision No. 286 of 2010 -2- Nuh. The same was challenged in a revision petition by the complainant, which was allowed vide order dated 31.10.2006. In the meantime in compliance with the order dated 12.10.2006, passed by the Sub Divisional Judicial Magistrate, Nuh, the Board of doctors constituted by the Chief Medical Officer, District Mewat gave its opinion on 18.10.2006, according to which injury No.1 was grievous in nature but not dangerous to life in normal course of nature. Petitioners challenged the order dated 31.10.2006, passed by the Addl. Sessions Judge, Gurgaon setting aside the order of the Sub Divisional Judicial Magistrate, Nuh dated 12.10.2006 in this Court by filing criminal Miscellaneous No. 71788-M of 2006, which was disposed of vide order dated 16.11.2006 by observing that the report dated 18.10.2006 submitted by Board of doctors may also be proved and read as a piece of evidence. He on this basis contends that the said opinion of the Board of doctors had not been appended with the challan, which has been submitted against the petitioners, depriving the petitioners the benefit of the said report and the trial Court had failed to take the opinion of the Medical Board dated 18.10.2006 into account while framing the charge under Section 307 IPC against the petitioners. His contention is that the said charge could have not been framed against the petitioners had the opinion of the Board of Doctors been taken into consideration and accordingly prays for setting aside of the charge framed under Section 307 IPC against the petitioners. On the other hand, counsel for the respondents, have submitted that the main plank of the petitioners in the present revision petition is that the counsel for the petitioners was not present when the charges were framed. He contends that the petitioners have intentionally not produced the order where the arguments on the charge were heard by the Court below. This was in the presence of the counsel for the petitioners and on this basis they pray for dismissal of the petition on this ground Crl. Revision No. 286 of 2010 -3- alone. It has further been submitted by the counsel that as per the order dated 16.11.2006 passed by this Court, the report dated 18.10.2006 submitted by the Board of doctors was required to be proved and read as a piece of evidence, which stage would only come when the evidence is led by the parties before the trial Court and at the time of framing of charge only report under Section 173 Cr.P.C. submitted by the police along with the documents attached therewith have to be taken into consideration. That part, it has been further submitted that the report dated 18.10.2006 by the Board of doctors has been obtained at the back of the respondent / complainant especially when the order dated 12.10.2006, passed by the Sub Divisional Judicial Magistrate, Nuh was under challenge before the Addl. Sessions Judge, Gurgaon and as a matter of fact, the said order was set aside vide order dated 31.10.2006. This Court had not set aside the order dated 31.10.2006 passed by the Addl. Sessions Judge, Gurgaon and had only disposed of the petition with a direction that the report dated 18.10.2006 submitted by the Board of doctors may also be proved and read as a piece of evidence. It has been submitted that the opinion of the Board of doctors was given without examining the patient i.e. Safeda. It is, thus, their submission that the present petition deserves to be dismissed. I have heard counsel for the parties and have gone through the records of the case. It is settled proposition of law that at the time of framing of charge the trial Court is required to consider only the report submitted by the police under Section 173 Cr.P.C. and the documents submitted therewith. After hearing the submissions of the accused and the prosecution in this behalf the Judge has to form an opinion as to whether there is ground for presuming that the accused has committed an offence Crl. Revision No. 286 of 2010 -4- or not. The Judge cannot at this stage look at any document, which is not part of the report submitted under Section 173 Cr.P.C. While disposing of Crl. Misc. No. 71778-M of 2006 where challenge was to the order dated 31.10.2006 passed by the Addl. Sessions Judge, Gurgaon setting aside the order dated 12.10.2006 of the Sub Divisional Judicial Magistrate, Nuh, whereby direction was issued to the Chief Medical Officer, District Mewat to constitute a Board of doctors to give an opinion about the injuries on the person of Safeda, particularly injury No.1. This order dated 16.11.2006 does not show that the order dated 31.10.2006 passed by the Addl. Sessions Judge, Gurgaon was set aside. However, the petition was disposed of with a direction that the report dated 18.10.2006 submitted by the Board of doctors may also be proved and read as a piece of evidence. This obviously has to be at a stage when the evidence is to be led by the prosecution and the defence and not prior thereto. The Court below had rightly, therefore, proceeded to take into consideration the report submitted by the police under Section 173 Cr.P.C. and the documents attached thereto and accordingly has framed the charge, which cannot be said to be not in accordance with law. In view of the above, this Court need not go into the assertion of the counsel for the respondents with regard to the mis-representation or non-disclosure of true facts before this Court with regard to the fact that the petitioners' counsel was very much present in Court and had, as a matter of fact, been heard by the Judge before framing of charge. Finding no merit in the present petition, the same stands dismissed. 19.10.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE