SHARMA, J. - (1.) BY this application under sec. 482 of the Code of Criminal Procedure, 1973, Hukam Singh has invoked the inherent jurisdiction of this Court for quashing an order dated 25-2-1975, passed against him by the learned Sessions Judge, Jodhpur, in Sessions Case No. 7 of 1975. The impugned order passed by the learned Sessions Judge is to the effect that Hukam Singh petitioner will be tried for an offence of attempt to murder punishable under sec. 307, IPC.
(2.) THE short facts giving rise to this application under sec. 482, Cr. P. C, may be stated as follows: - Col. Megh Singh lodged a written report of an incident of attempt to murder with the police at police station, Udaimandir, on 20-10-1974 at about 6 pm. It was alleged in the report that on 20-10-1974, at about 4 pm. Hukam Singh accompanied by the son of Maharaja Himmat Singh and other entered the house of Col. Megh Singh, who was at that time taking rest in his bed room on the first floor. Upon being informed that he was required to come downstairs, Col Megh Singh came down. Upon seeing him, Hukam Singh cried in a loud tone that he was a stooge of the Congress and the Jats and that he was responsible for blood-shed of Rajput students in the University campus on 19-10 1974. Hukam Singh further told Col. Megh Singh that if the latter was the leader of Rajput students, he must accompany the former for the purpose of shooting at Jat students. THEreupon, Col. Megh Singh politely requested the petitioner to take his seat under a tree in the compound of his house and not to talk in this heated manner. Hukam Singh turned deaf ears to his request and became violent, took out his pistol cocked it and levelled it at the chest of Col. Megh Singh while saying that he would kill the latter. Maharaja Himmat Singh's son snatched the pistol from Hukam Singh, who, then caught hold of Colonel Megh Singh by his shirt and asked the Colonel to touch his feet. Hukam Singh again aimed his pistol at the Colonel but the latter was rescued by Durag Singh and others who had assembled there on hearing exchange of hot words. THEreupon Col. Megh Singh went inside his house and Hukam Singh ran away from there accompanied by his associates. On the basis of this written report, the police registered a case against Hukam Singh under sec. 451 and 147, I. P. C. and started investigation. Upon completion of investigation the police filed a charge-sheet against Hukam Singh in the court of the Additional Munsiff and Judicial Magistrate, No. 2, Jodhpur, under secs. 307, 147, 447, 352 and 504, IPC. The learned Magistrate committed the accused-petitioner to the court of the learned Sessions Judge, Jodhpur, for trial. It was conten-ded before the learned Sessions Judge by the learned counsel for the petitioner that on the facts of the case, no offence under sec. 307, IPC. is prima facie made out. The learned Sessions Judge perused the record and after hearing arguments came to the conclusion that there was sufficient material on the record justifying framing of the charge under sec. 307, IPC, against the petitioner. He, therefore, passed an order accordingly Aggrieved by the order the petitioner has moved this court for quashing the impugned order in the exercise of its inherent jurisdiction. Notice of this application was given to the State. Shri G. A. Khan appearing on behalf of the State hotly contested the application. I have carefully gone through the record and heard the arguments. It has been contested on behalf of the petitioner that no shot was fired at Col. Megh Singh by the petitioner from his pistol and that unless the trigger is pressed and shot is fired from the fire-arm. it cannot reasonably be held that the petitioner committed an offence of attempt to murder punishable under sec. 307, IPC la support of the above contention, the learned counsel for the petitioner invited my attention to illustration (c) appended to sec. 307, IPC. and to an authority of the Supreme Court reported as Om Prakash vs. State of Punjab (l ). Shri G. A. Khan, on the other hand, argued that it is immaterial whether or not the petitioner has pressed the trigger of the pistol and has done the last act towards the commission of the offence of attempt to murder. According to him, if from the facts brought on the record it is prima facie established that the petitioner has done an act with such a guilty intention and knowledge and in such circumstances that but for some intervening factor the act would have amounted to murder, he can be charge-sheeted under sec. 307, IPC. I have given my anxious consideration to the rival contentions. It is not disputed before me that Hukam Singh did not pull the trigger of his pistol and fire a shot from it. The only act, which is alleged to have been committed by him is to level the pistol to the chest of Col. Megh Singh while shouting that he would kill the latter. It was just likely on the facts disclosed that Hukam Singh might have intimidated the complainant. The circumstances mentioned above did not lead to an inference that the petitioner necessarily had the intention to kill Col. Megh Singh and that be did any act capable of causing death. From the mere fact that after uttering hot words the petitioner rushed towards the complainant, levelled a pistol to his chest for a short while without pulling its trigger, it is unsafe to lead to the conclusion that the petitioner made an attempt to murder Megh Singh. The difference between mere preparation and actual attempt to commit an offence is that in an attempt the degree of determination to do the act is greater than in preparation. The act of levelling pistol to the chest of the complainant without firing a shot therefrom may be an act of criminal intimidation but certainly it is not a transaction which would have necessarily ended in the crime of murder, if not interrupted. The view which I have held finds support from illustration (c) appended to sec. 307, IPC. which reads as follows: - "a, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z- He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section. " It is undoubtedly true that the act referred to in S. 307, I. P. C. must not necessarily be the last act, which would have caused the death, because in Om Prakash vs. State of Punjab (supra) their Lordships of the Supreme Court were pleased to make the following observations at page 1783 : - "the expression "by that act" does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word 'act' again, does not mean only any particular, specific, instantaneous act of a person, but denotes, according to S. 33 as well a series facts. " But it cannot be lost sight of that the facts in the case before their Lordships were that the accused unintentionally starved his wife Bimla Devi and did not provide food to her for days together and did not permit her to leave his house. On account of under-nourishment, Bimla Devi's health deteriorated day by day till she managed to run away from the house of her husband. On these facts, their Lordships observed as follows: - "the course of conduct adopted by the appellant in regularly starving Bimla Devi comprised a series of acts and therefore acts falling short of completing the series, and would therefore come within the purview of S. 307 of the Code. " In cases where an attempt to commit murder is made by fire-arm, their Lordships were clearly of the view that until a shot is fired from a fire-arm, the accused cannot be said to have done any act towards the commission of the offence of attempt to murder, but if once a shot is fired and the shot is prevented from taking effect on account of some obstruction unknown to the accused or beyond his control, the offence of attempt to murder is made out. The observations of their Lordships of the Supreme Court on this point are quoted below in extenso: - " (16) It may, however, be mentioned that in cases of attempt to commit murder by fire-arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to present the shot taking effect, the offence under S. 307 is made out. Expressions, in such case*, indicate that one commits an attempt to murder only when one has committed the last act necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct. " Hence on the facts of this case charge for an offence of attempt to murder is not made out prima-facie and Hukam Singh petitioner cannot be charged under sec. 307, IPC. Shri G. A. Khan appearing on behalf of the State, however, contended before me that the facts of this case prima facie disclose that the offence of criminal intimidation had been committed by the petitioner and a direction may be issued to the Sessions Judge, trying the case to frame a charge against the petitioner under S. 506, I. P. C. It is not desirable forme to issue any direction in this regard. It will be the function of the Sessions Judge to apply his mind to the facts of the case and to arrive at a conclusion whether on the materials placed before him an offence of criminal intimidation amounting to a threat to cause death or grievous hurt punishable under the latter part of sec. 506, I. P. C. or any other offence is prima-facie made out. Suffice it to "say, that allegations in the first information report even if taken at their face value do not constitute the alleged offence punishable under sec. 307, I. P. C. In this view of the matter, there is justification for the excise of the inherent jurisdiction to quash the order of the learned Sessions Judge, Jodhpur, dated 25-2-1975.
(3.) CONSEQUENTLY, I accept the application filed by the petitioner under sec. 482, Cr. P. C. and set aside the order of the learned Sessions Judge, Jodhpur, dated 25-2-1975 and send the case back to him for proceeding according to law in the light of the observations made above. .;