H. C. Mishra, J. - (1.) HEARD learned counsels for both the sides. The petitioner has challenged the order dated 29.9.2010, whereby the Court below on the application, under Section 228 of the Code of Criminal Procedure, filed by accused Sumit Kumar has found that the case related to a motor vehicle accident, in which, the deceased had died, the case was only under Sections 279 and 304A IPC and was accordingly, remitted back to the committing Court under Section 228 Cr.P.C. for proceeding in accordance with law.
(2.) IT appears that though the case was instituted under Sections 279 and 304 IPC, but upon investigation, the police had submitted charge sheet under Sections 279, 304A IPC, but the cognizance was taken by the court below on 3.1.2009 under Sections 279/304 IPC against the accused. It also appears that upon taking into consideration the material on record, the Court below found that as there was no enmity between the parties, the case was made out under Sections 279 and 304A IPC and has accordingly, remitted the case back to the committing Court under Section 228 Cr.P.C. The petitioner, who is informant in this case, has challenged the impugned order passed by the Court below submitting that cognizance was taken for the offence under Sections 279 and 304 IPC and Section 304 is a triable by the Court of Session. Learned counsel submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law as cognizance was clearly taken under Sections 304 IPC, but the Court has come to the conclusion without any material that the case was actually under Section 304A IPC. Learned counsel has accordingly submitted the impugned order cannot be sustained in the eyes of law.
(3.) LEARNED for the opposite party no. 2, on the other hand, submitted that there is no illegality in the impugned order worth interference in the revisional jurisdiction, inasmuch as on the basis of the material on record, the Court below has come to the conclusion that there was no enmity between the parties, rather, it is a clear cut case of motor vehicle accident due to which the deceased had died and accordingly, held that the case is made out under Sections 279 and 304A IPC which are exclusively triable by 1st Class Judicial Magistrate and accordingly, the case was remitted back.;