- (1.) S. R. Bhargava, J. This revisions directed against Revisional order holding that offence under Section 307, I. P. C. is made out against the accused in a complaint case and the Magistrate should pass suitable order. Learned Revisional Court allowed the Revision and sent back the case to Magistrate for suitable orders.
(2.) FACTS giving rise to this revision are that a complaint was filed against the revisionists for offenses under Sections 147, 323, 504, 506 and 307/149, I. P. C. Learned Magistrate summoned the Revisionists for offences other than Section 307, I. P. C. After evidence was recorded complaint moved application that case should be committed to sessions under Section 323, Cr. P. C. because case under Section 307, I. P. C. is made out. Learned Magistrate held that charges has been framed and that medical evidence does not show that injuries of the victim were sufficient to cause death in ordinary course of nature. Hence he dismissed the application. In revision preferred by the complaint lower Revisional Court held that prosecu tion case and evidence that due to enmity arising from civil litigation revisionists of the revision in this Court forcibly attempted to throw the victim in open manhole and the victim was removed when his body was in the manhole to the extent of hall, make out a case of attempt of murder punishable under Section 307, I. P. C. exclusively triable by Court of Sessions. Sri Sabhajit Singh Yadav Counsel for the revisionists advanced following argument in this Court: (1) In the instant case powers under Section 323, Cr. P. C. cannot be used because while summoning the accused under Section 204, Cr. PC. . Magistrate did not summon the accused for offence under Section 307, Cr. P. C. and at the time of framing charges or after that omission of charge under Section 307, Cr. P. C. was not challenged. (2) Power under Section 323 can be exercised by Magistrate and application by complaint was not maintainable. (3) Discretion of the Magistrate could not be revised by revisional Court. (4) There was no additional evidence before Magistrate and no case under Section 307, I. P. C. was made out. Words. . . . . . . 'in any enquiry into an offence or trial before a Magistrate. . . . . . . . . . . at any stage of the proceeding before signing the judgment' occurring in Section 323, are very wide. They have overriding effect on all previous provisions. Power of the Magistrate under Section 323, Cr. P. C. is no doubt discretionary but he has to exercise jurisdiction judicially. He can exercise his discretion suo motu or on an application of any of the parties. If he exercise power under Section 323, Cr. P. C. and commits the case to Sessions' proceeding before him is terminated when that is refused to exercise power which could terminate proceeding. The order of refusal to exercise power to terminate proceeding by committing the case to Sessions is final order and is amenable to revisional jurisdiction of the Sessions Judge. View of the Sessions Judge i. e. the Lower Revisional Court that offence under Section 307, Cr. P. C. is prima facie made out is not untainable. An open manhole is always called death trap and attempted forcible dropping of victim in open manhole prima facie shows case under Section 307, I. P. C. 6. Revision has no force and is summarily rejected at admission stage. Summarily rejected. .;