Mahavir Singh Chauhan, J. - (1.) HEARD .
(2.) PETITIONERS were arraigned as accused in Criminal complaint No. 155/1 of 06.10.2006 wherein Court of learned Judicial Magistrate, 1st Class, Jalandhar (for short -'the trial Court') vide order dated 16.09.2011, had discharged them by observing as under: - 6. Now it is the case of the complainant that on 04.10.2006, all the accused were armed with deadly weapons and were members of unlawful assembly and voluntarily caused hurt on the person of the complainant and further wrongfully confined complainant. It has been stated that all the accused were initially were empty handed. However, later on, accused Dharminder Singh and Ranjit Singh took hockey sticks which was already lying in the room and started giving the hockey blows, which it the complainant on his legs and shoulder. Even though the said fact does not inspires confidence. However, even if it is admitted that both the said accused armed themselves with hockey sticks, it still remains a fact that remaining accused were empty handed. In that eventuality all the accused cannot be said to be members of unlawful assembly armed with deadly weapons. As per the case of the complainant accused Rajminder Singh gave blow on his mouth. Dharminder Singh and Ranjit Singh gave hockey blows on his legs and shoulder. Accused Kamal Nain Singh and Rupinder Kaur gave kick blows. Admittedly complainant suffered many injuries on his person. However, complainant has failed to prove on the record any medical evidence to substantiate the fact that he suffered injuries at the hands of the accused. Complainant has tried to explain the said fact by stating that he went to the Civil Hospital for his medico legal examination but the concerned doctor refused to conduct his treatment. The said fact is completely un -believable. Complainant to substantiate the said fact has failed to reveal the name of the said doctor who had allegedly refused to medico legally examine him. Complainant has further failed to prove on record any evidence, if any complaint was made against the said doctor to his Superior Officers. Moreover, the complainant was not barred from getting conducted his treatment from any private doctor. Further there is nothing on the record to prove the fact that complainant suffered injuries on the day of occurrence and got himself treated from a Medical Officer. Even though to prove the offence u/s. 323 IPC, medico legal examination report is not necessary. However, in the present case, it has been candidly stated by the complainant that he had suffered external injuries at the behest of the accused. In that eventuality it was incumbent upon the complainant to prove on the record the medical evidence qua the said fact. 7. Summing the aforesaid discussion, whole of the version of the complainant does not find support from the evidence lead before charge as well as the documents proved on the record. Therefore, there are not sufficient ground to charge sheet accused u/s. 342, 323, 148 and 149, IPC. Accused facing trial are discharged. Their bail bonds and surety bonds stands discharged. File be consigned to the record room sine die it shall be recalled as and when accused Ranjit Singh arrested in this case and produced in the court. To challenge the aforesaid order dated 16.09.2011, complainant filed a Criminal Revision No. 29709 of 2013 wherein learned Additional Sessions Judge (FTC), Jalandhar (for short -the 'revisional Court'), vide order dated 07.03.2014, has set aside the order of the learned Judicial Magistrate, 1st Class, Jalandhar and has remanded the case back for rehearing the parties on pre -charge evidence and to decide the matter, as per procedure known to law, by observing as under: - I have heard arguments of learned counsel for the parties and perused record. I have heard arguments of learned counsel for parties. Both learned counsel extensively thrashed the testimonies of complainant witnesses to argue. The detailed arguments of counsels need not to be reproduced here as impugned order suffers from basic legal defect. Learned counsel for the accused argued that evidence on record was not sufficient to warrant conviction of accused, hence, they have been rightly discharged. On the other hand, learned counsel for the complainant argued that a detailed inquiry is not required at the stage of charge. 5. Before proceeding further to appreciate evidence U/S. 245, Cr.P.C., it is necessary to delineate the exact nature of appreciation of evidence. In RS Naik Vs. AR Antulay : AIR 1986, S.C. 2045, after making comparisons of provisions of Sections 227, 239 and 245(1) Cr.P.C., the Hon'ble Court came to conclusion: - The stage for discharge under section 245, on the other is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position. There is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) Cr.P.C. is a preliminary one and the test of prime facie has to be applied. In spite of the difference in the language of the three sections the legal position is that if the trial Court is satisfied that prima facie case is made out, charge has to be framed. Thus, at this stage, the Court to see the prima facie case only which means there are some triable factual and legal issues but not sufficiency of evidence for conviction. 6. On perusal of impugned order particularly para No. 5, 6, 6(number repeated) and 7, it is clear that learned Magistrate has marshalled the facts to see whether evidence on record is sufficient for conviction or not, which is clearly against the mandate of Hon'ble Supreme Court in judgment cited supra. Only prima facie case was to be seen. No more opinion is expressed lest it should prejudice the parties or influence the findings of the Magistrate on reconsideration of matter. However, the order dated 16.09.2011 is not sustainable, being contrary to law laid down by Hon'ble Supreme Court cited supra. 7. Accordingly, the revision is allowed. Impugned order dated 16.09.2011 is set aside. The complaint is remanded back to learned Area Magistrate to re -hear the parties on pre -charge evidence and to decide in accordance with parameters of law laid down by Hon'ble Supreme Court in judgment R.S. Naik (supra). Parties shall appear before learned trial court on 14.03.2013 at 10:00 A.M. sharp. 8. Revision file be consigned to record room. Lower Court file be returned along with copy of this order.
(3.) LEARNED counsel for the petitioner has vehemently argued that learned trial Court has scanned the entire evidence available on record, has come to a definite conclusion that no offence is made out against the petitioners and that being so, order of revisional Court cannot be sustained because the revisional Court has brushed aside the well established position of law that in the absence of a prime facie case, charge against accused cannot be framed.;