The trial court has the power to frame charges under relevant penal sections based on evidence and after hearing the accused.

1. By this common judgment, petition filed under Section 561-A Cr. P.C. bearing CRMC No.101/2011 and connected CRR No.37/2011 are being disposed of as both the petitions are directed against the same order dated 16th of April, 2011 passed by the Munsiff, Judicial Magistrate 1st Class, Ramban.

2. In CRMC No.101/2011 petitioners seek quashing of order dated 16.04.2011, passed by Munsiff, Judicial Magistrate 1st Class, Ramban, by virtue of which, case has been committed to Sessions Judge without deciding the application of petitioner no.4, the juvenile, and CRR No. 37/2011 has been filed by complainant-Filal Ahmed against order dated 16.04.2011 passed in File No.200-A titled Filal Ahmed Malik vs. State and ors., being protest petition regarding Challan filed under Sections 173 Cr.P.C arising out of FIR No.196/2009 Police Station, Banihal so far as it relates to the order of commitment of case under Sections 304, 323, 354, 352 and 147 RPC instead of Sections 302, 354, 323, 352 and 147 RPC.

3. In CRMC No.101/2011, the grievance of the petitioners is that a false and a baseless FIR has been lodged against the petitioners at Police Station, Banihal, on 9.9.2009 at the instance of one Filal under Section 452/147/354 RPC i.e. FIR No. 196/2009.

4. Case in brief is that on 09.09.2009 one Filal lodged a written complaint in Police Station Banihal against 11 persons including the accused, alleging therein that on the day of occurrence he (complainant) along with his other family members were waiting to break the fast of ramzan (Roza) in the evening in their house, some accused five in numbers entered into the premises of the complainant and started abusing and thereafter left, but after some time the other accused, who also reside in the same village at a distance came again and started abusing, and giving kicks and blows to the entire family members of the complainant. It is also alleged that the accused gave a cudgel (danda) blow on the head of the father of the complainant due to which he got injury on the head, over the eye and fell down and became unconscious, he was taken to emergency hospital Banihal wherefrom he was referred to SKIMS for further treatment. It is further alleged in the complaint that the accused molested the sister of the complainant and other female members of the family. On this report, an FIR No.196/2009 was registered in Police Station, Banihal for commission of offences under Sections 452/147/354 RPC. The father of the complainant, namely Mohammed Ramzan Malik who was referred to SKIMS, died on 11.09.2009 and after his death the offence under section 302 RPC was added, investigation was entrusted to one Dy.SP Jamail Ahmed who started investigation and during the course of investigation, he recorded the statements of witnesses under Section 164-A before the competent Magistrate, but in the meanwhile, the investigation came to be transferred to Crime Branch, Jammu vide PHQ order No.3634 dated 15.10.2009. The Crime Branch Jammu handed over the investigations to one Inspector Ghulam Hassan Kamal, who visited the spot of occurrence, prepared the site plan, collected the post-mortem report, and also recorded the statements of witnesses under section 161 Cr.P.C.

5. The charge sheet came to be presented before the Court below on 08.02.2010 and the protest petition was filed on 12.04.2010 by the complainant seeking inclusion of the offences under Section 302/354/148 RPC. The court below committed the case to Sessions Judge without deciding the application of petitioner no.4 for declaring him juvenile.

6. The petitioners are aggrieved of the above said order dated 16.04.2011, and questioned the same on the following grounds:-

(i) That the Protest petition was not maintainable because the challan produced by the investigating agency i.e Crime branch and proceedings in the challan were to be conducted by the trial court under the Criminal Procedure-Code Once an application of petitioner No.4 was filed, praying therein