NAND KISHORE SINGH Vs. THE STATE OF BIHAR AND OTHERS.

JUDGEMENT

(1.) This revision petition is directed against the order passed by a Judicial Magistrate, 1st Class, by which he refused to commit the case to the court of session as, in his opinion, no offence punishable under Sec. 307of the. Indian Penal Code (herein after referred to as the 'Penal Code') was made out on the materials available on the record. 2. The facts giving rise to this case is that on 10.8.1979 at about 3 P.M. the informant, Nand Kishore Singh, was returning back from his field and when he reached near the cutonerry of opposite party no. 2. Dilip Kumar Sahu, he noticed that a meeting was being held there which was attended by a large number of persons. Having seen the informant, opposite party no. 3 Mahadeo Singh stated that the information had gone there as an agent of the landlord to get secret information. Dilip Kumar Sah, thereafter asked the persons present there to kill the informant. All the members of the opposite party except opposite party no. 1, along with some other persons chased Nand Kishore Singh and he ran away to save himself. Mahadeo Singh (opposite party no. 2) caught the informant and other of the mob surrounded him. All the members of the mob were warily armed. Nandlal Singh, opposite party no. 4 inflicted bhala injury on the chest of the informant and opposite party no. 5 Shankar Sah gave a bhala blow causing injury on his mouth, as a result of which his tooth, was broken and be fell down and, thereafter, other accused persons also assaulted him with lathi. On hulla, some witnesses rushed to the place of occurrence and the members of the mob fled away. After retreat of the mob, the family members of the informant carried him to Maniari State Dispensary where his fardbeyan was recorded by the Officer -in -charge of Maniari Police Station on 17.8.1979 at about 10.30. A.M. It is stated in the fardbeyan that the informant was unable to speak on account of the injury on his mouth on 10.8.1979 and 'so he gave his statement on the following day.

(2.) A case was registered on the basis of the said fardbeyan and after investigation, the police submitted charge -sheet on 30.9.1979 under various Sec. of the penal Codes, including Sec. 307. After receipt of the charge -sheet, separate petitions were filed on behalf of different accused persons on 25.2.1980 before the Sub -divisional Judicial Magistrate stating therein that no offence punishable under Sec. 307of the Penal Code was made out and, so, cognizance should not be taken of the said offence. After hearing the parties, a reasoned order was passed on 6.3.1980 by the Sub -divisional Judicial Magistrate by which he took cognizance of the offences punishable under Ss. 147, 148, 323, 326and 307read with Sec. 34of the Penal Code and the case was transferred on the same date to Shri N.K. Choudhary, Judicial Magistrate, 1st Class. In the transferee court again a petition was filed on behalf of the accused persons -opposite party with a prayer that the case should not be committed to the court of session, as no offence punishable under Sec. 307of the Penal Code was made out on the materials collected by the police. The learned Magistrate asked the informant to file a rejoinder, if so advised, and, accordingly, the informant filed a rejoinder. Both the parties were heard and finally the order was passed on 15.12.1980, which is Under challenge in this revision petition.

(3.) Learned Counsel for the petitioner -informant has contended that the learned Magistrate has dealt with evidence as if he was holding a trial and thereby has gone beyond the scope of Sec. 209of the Code of Criminal procedure (hereinafter referred to as the Code). It is also urged that the Sub -divisional Judicial Magistrate, after hearing the parties, considered the statement of the witnesses as also the other circumstances and, thereafter, he expressed his view that there was sufficient material for further proceeding and he took cognizance of the offence punishable under Sec. 307of the Penal Code. Submission has been made that the transferee Magistrate has practically revised the order of the Sub -divisional Magistrate which is not permissible under the law.