Point of Law:
The person, who is prompt, to request the police authority within a day or two of the FIR, of invoking the provisions under Section 307 of the IPC, has not cared to ascertain whether police has submitted the charge-sheet for that offence or not. Not only that, he has not cared to see the said provision be invoked either by moving the Court for further investigation or requesting the Court to frame that charge for an offence punishable under Section 307 of the IPC.

JUDGMENT :

1. By way of this Criminal Revision Application the original informant of the case challenges the order passed by the learned Judicial Magistrate First Class, Maliya Hatina dated 22.04.2014 in Criminal Case No.203 of 2011 whereby Exh.29 application given by the first informant to invoke the provisions of Section 307 of the Indian Penal Code (hereinafter referred to ‘IPC’) against accused by altering the charge already framed under Section 216 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’).

2. According to the prosecution case, on 07.11.2010, the first informant registered one FIR against five named accused as also eight to ten unknown persons for the offences punishable under Sections 143, 147, 148, 149, 594, 506(2), 323 and 427 of the IPC as also under Section 135 of the Bombay Police Act, 1951. Over and above that, offence under Section 30 of the Arms Act, 1959 is also invoked by the first informant.

3. On registration of the offence, the accused named therein appears to have been arrested on 09.11.2010. It is very pertinent to note here that the first informant vide an application dated 09.11.2010 requested the Police Sub Inspector, Chorwad, where offence is registered, to invoke the provisions of Section 307 of the IPC into FIR as his FIR was self eloquent for that. Coincidently, on that very day, the accused came to be arrested in connection with the offence. It appears from the record, more particularly, from page 39 of the compilation that the present petitioner - first informant, who was summoned for giving deposition before the Court on 11.03.2014, appears to have come prepared with a detailed application, Exh.29 running into four pages requesting the Court to defer his deposition and instead alter the charge under Section 216 of the Code invoking Section 307 of IPC also against the accused. The learned Judge, after receipt of the application, Exh.29 on 11.03.2014, the day fixed for recording the deposition of the first informant, deferred the recording of his deposition and fixed the said application for hearing. As coming out from the order itself, it is clear that charge-sheet in the case came to be filed on 31.03.2011 for an offence as mentioned in the impugned order itself. It is also reflected from the order that despite the application dated 09.11.2010 by the first informant to invoke the provisions under Section 307 of the IPC into FIR was considered during investigation but the Investigating authority thought it fit not to invoke the same as it was not made out. Thereafter, on 09.12.2012 charge in the case against the accused came to be framed.

3.1 After hearing the parties, learned Magistrate, by the impugned order, rejected the application preferred by the first informant submitted through in-charge APP of that case. According to the first informant, all necessary ingredients of offence under Section 307 of the IPC are disclosed in the FIR. Not only that when the accused had put the sword over the neck of the witness Harish and aimed the licensed revolver over the head of the first informant with a threat of dire consequence, an offence under Section 307 of the IPC is clearly made out. According to what is mentioned in the application, Exh.29, the first informant as also other witnesses were assaulted and many witnesses were slapped, and therefore, according to the first informant, when FIR itself was very clear showing weapons of offence, being sword and revolver, Section 307 of the IPC is required to be invoked and charge framed is required to be altered under Section 216 of the Code as it can be altered at any time prior to pronouncement of the judgment in the case. It is further mentioned in the application, Exh.29, by the first informant, that the said deadly weapons like sword and revolver have been recovered by the Investigating Officer from the accused.

4. Shri Raj Tanna, learned advocate for M/s. H.L. Patel Advocates, for the petitioner, submitted that rejecti