- (1.) MRS. Poonam Srivastav, J. Heard Sri P. N. Tripathi, learned Counsel for the petitioners, Sri M. Sarwar Khan Advocate for the opposite party No. 2 and learned A. G. A. for the State.
(2.) SINCE the identical controversy is involved in both the connected writ petitions, hence they are being heard together and decided by this common judgment. A First Information Report was lodged at the instance of the respondent No. 2 at case crime No. 101 of 2003 on 10-3-2004, under Sections 147, 148, 452, 504, 325, 427, I. P. C. Police Station Jalalpur, District Jaunpur. The first informant and one Bhagirath had received injuries, who were examined at District Hospital, Jaunpur. On perusal of the injury report and X-ray report of Bhaghirath, it is clear that the offence under Section 307 I. P. C. made out. The injured was in the Hospital for a considerable period. The frontal bone was fractured and, therefore, the offence is very well covered under Section 308 I. P. C. After completing the investigation, a charge-sheet was submitted by the police on 6-6-2003. After submission of the charge-sheet, the learned Magistrate took cognizance under Sections 325, 323 and 504 I. P. C. An application was moved by respondent No. 2 stating therein that the charge-sheet submitted in respect of minor offences is a result of biased investigation. Objections were invited by the Additional Chief Judicial Magistrate to the aforesaid application. The accused petitioners filed their objection which was disposed of by the learned Magistrate vide order dated 25-8-2004 coming to a conclusion that prima facie he is satisfied that an offence under Section 308 I. P. C. is made out and, therefore, summoned the accused- petitioners in the said offence as well and directed that the case be put up on 16-9-2004 for committal. This order was challenged in Criminal Revision No. 350 of 2004 which was dismissed vide order dated 8-12-2004. The co-accused Satyendra challenged the two orders in Criminal Misc. Writ Petition No. 1139 of 2005, Satyendra v. State of U. P. , and this Court vide order dated 3-2-2005 stayed the order of the learned Magistrate dated 25-8-2004. The remaining accused filed the present writ petition. Sri P. N. Tripathi has challenged the two orders on a number of grounds. It is submitted that the learned Magistrate had taken cognizance on the basis of material available on the case diary and after submission of the charge-sheet, he had no jurisdiction to take cognizance under Section 308 I. P. C. without recording any further evidence. It is also submitted that since the respondent No. 2 is a doctor and only to aggravate the gravity of the offence, the injury has been manufactured. The exercise of powers by the learned Magistrate under Section 319 Cr. P. C. is illegal on the face of record.
(3.) SRI M. Sarwar Khan appearing on behalf of the respondent No. 2 has emphatically disputed each and every arguments of the learned Counsel for the petitioners. The submission is that the learned Judicial Magistrate is fully empowered to commit any case to the Court of Sessions at any stage either during the inquiry proceeding or in the middle of the trial. There is no bar and, therefore, the apprehension on behalf of the petitioners is without any basis. Reliance has been placed on three decisions; Rajendra Prasad Singh v. State of U. P. and Ors. , 2005 (3) JIC 644 (All) : 2005 (53) ACC, 549, in which this Court had ruled that the X-ray report disclosed the fracture and the Judicial Magistrate had overlooked the fracture at the time of taking cognizance, he cannot be precluded at a subsequent stage if the error is brought to his notice and the Magistrate is satisfied that an offence other than minor Sections is made out. The Magistrate is well within his rights to act according to evidence available on record. The Apex Court has also ruled in the case of State of Maharashtra v. Salman Salim Khan and Anr. , 2004 (48) ACC, 606 (S. C.) and M/s. Swil Ltd. and Ors. v. State of Delhi and Anr. , 2001 (43) ACC 591 (SC ). The Apex Court ruled that it is open for the Magistrate at any stage of the trial to commit the case for further trial to a superior Court as contemplated by Code of Criminal Procedure. The Magistrate is not barred from exercising the power at any stage of the trial. At the stage of issuing process, the Magistrate is required to consider the First Information Report, statements recorded by the police officer and other documents, even where the police report is to the effect that no case is made out, the Magistrate is fully empowered to take cognizance under Section 190 (1) (b) Cr. P. C. The cognizance is taken of an offence and not an offender. "in the instant case, perusal of the impugned order discloses that when the charge-sheet was submitted, the supplementary injury report in the form of X-ray report was not on record. The discharge card of Bhaghirath was not available and for want of necessary documents, the cognizance was taken only under Sections 147, 148, 452, 504, 323, 427 I. P. C. After the medical report was brought to his notice, the Magistrate discovered that the frontal bone of Bhaghirath was fractured which is admittedly a vital part and could have resulted in his death. The satisfaction of the Court is clearly recorded in the impugned order. The objection of the learned Counsel regarding exercise of jurisdiction under Section 319 Cr. P. C. is uncalled and irrelevant. In the instant case, there is no applicability of the Section 319 Cr. P. C. The impugned order is passed on an application on behalf of the contesting respondent in view of the supplementary injury report. The Magistrate has taken cognizance on perusal of additional documents and arrived at a conclusion that an offence under Section 307/308 I. P. C. appears to have been committed and summoned the accused. Objection preferred against the said application was rejected. In the circumstances, I am not in agreement with the submissions of the learned Counsel for the petitioners. For the reasons stated above as well as various decisions of the Apex Court and this Court, I am satisfied that the Magistrate passed the impugned order in exercise of powers under Section 190 (1) (b) Cr. P. C. after the additional documents, such as X-ray report etc. were brought on record.;