Before framing a charge for a particular offence, the court must examine if the essential ingredients of the offence are made out by the evidence.

R.S. Chauhan, J.-The petitioner has challenged the order dated 02.06.2005 whereby the Special Judge, SC/ST (Prevision of Atrocities) Court, Jaipur City, Jaipur has framed charge for offence under Sections 353, 332 and 308 IPC against the petitioner.

2. The brief facts of the case are that on 02.02.2005 when the petitioner was going on his motorcycle to his house near the Government Hospital he suddenly met with an accident with the Police Constable Satya Narain. Because of the said accident Satya Narain sustained an abrasion on his left elbow. But as the petitioner had collided with the Police Constable, the other police personnel who were standing near the Government Hospital, they all came over to the site of the accident and physically assaulted the petitioner. They also threatened the petitioner that in case he were to lodge any complaint against them, he would face dire consequences. In order to protect themselves the police constables lodged an FIR against the petitioners for offence under Section 308, IPC. Since the police was not willing to register a formal FIR against the police constable, the petitioner filed a complaint before the Chief Judicial Magistrate for offence under Sections 323, 341, 342 and 504/34, IPC. He also requested the Chief Judicial Magistrate to direct that the petitioner be medically examined in order to prove the fact that the petitioner was assaulted by the police. Meanwhile, on the basis of the FIR registered against the petitioner under Section 308, IPC vide order dated 02.06.2005 the Special Judge SC/ST Court, Jaipur City, Jaipur has framed charges against the petitioner for offences under Sections 332, 353 and 308, IPC. Hence, this petition before us.

3. Mr. S.K. Gupta, learned Counsel for the petitioner, has argued that Satya Narain has merely suffered an abrasion on the left elbow. According to the X-Ray report dated 02.02.2005 there is no evidence about fracture of the said elbow. Other injuries claimed by him was complaint of pain and tenderness and swelling on the left forearm. Thus, the basic ingredients of the offence under Section 308, IPC are not made out. Yet the learned trial Judge has framed charges for offence under Section 308, IPC.

4. On the other hand the learned P.P., Mr. Arun Sharma, has argued that whether the ingredients for offence under Section 308, IPC are made out or not is a matter to be proved by the prosecution during the course of trial. Therefore, at this stage it would be premature to interfere with the charge order.

5. We have heard both the learned Counsels and have perused the record before us and have examined the impugned order.

6. It is, indeed, trite to state that the framing of a charge is not a mere formality. Before a charge can be framed for a particular offence the Court is duty bound to apply its judicious mind to the evidence produced by the Investigating Agency and to examine if the essential ingredients of the offence are made out by the said evidence or not. Therefore, in the instant case before a charge for offence under Section 308, IPC could be framed by the learned Judge, the learned Judge should have examined the evidence to see if the act complaint of was done with such intention or not and under such circumstances that if death has been caused, the alleged petitioner would be guilty of culpable homicide not amounting to murder. A bare perusal of the medical report clearly reveals that the injured Satya Narain had merely sustained an abrasion on the left elbow. There was not even a hairline fracture of the left elbow. Since death cannot ensue by an abrasion caused to the left elbow, culpable homicide not amount to murder cannot be caused by the said injury. Clearly, the essential ingredients of offence under Section 308, IPC are conspicuously missing in the case. Yet, surprisingly the learned Judge has framed a charge for offence under Section 308, IPC.

7. In the result, we modify the charge order dated 02.06.2005 to the limited