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1993 Supreme(All) 579
IN THE HIGH COURT OF ALLAHABAD
K. NARAYANA KURUP
MANOO LAL YADAV - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. Revision 1874 Of 1993
Decided On : 11/26/1993
Kamal Krishna
The court emphasized the importance of judicial discretion in framing charges and the need to avoid unnecessary harassment of the accused. The court also highlighted the principle that the accused should be tried by the court of lowest jurisdiction capable of taking cognizance of the offense.
Headnote:
CRIMINAL PROCEDURE CODE - CHARGE FRAMING - SECTION 228 - COURT'S DISCRETION - JUDICIAL APPROACH - OFFENCE DESIGNATED BY POLICE - LOWER JURISDICTION - SECTION 308 IPC - SECTION 323 IPC - SUMMARY
Fact of the Case:
The accused was charged with attempt to commit culpable homicide under Section 308 IPC based on a police report alleging assault with iron rods causing serious head injuries. The accused challenged the charge, arguing that the dispute was between the tempo driver and the informant and there was no indication of intent to commit murder or cause life-threatening injuries.
Finding of the Court:
The court held that the charge under Section 308 IPC was not justified and could not be maintained. The court found that the facts did not support the conclusion that the accused intended to cause death or even create an apprehension of death.
Issues: 1. Whether the charge under Section 308 IPC was justified based on the facts of the case. 2. Whether the court below exercised proper judicial discretion in framing the charge.
Ratio Decidendi: 1. The court held that the words "Mardo Sale Ko, Aaj jan se Mar Dab" (Kill him, kill him today) are generally exclamations for extra courage and creating an awe with the victim and do not show intent to commit murder or culpable homicide. 2. The court emphasized the importance of judicial discretion in framing charges and the need to avoid unnecessary harassment of the accused. The court noted that a conviction under Section 323 IPC by a Magistrate would result in an appeal to the Sessions Judge, while a conviction under a minor section by the Sessions Judge would require the accused to approach the High Court. 3. The court also considered the fact that the informant had accepted the proceedings under Section 308 IPC, implying consent to the State's authority to deal with the matter.
Final Decision: The court allowed the revision petition, set aside the charge under Section 308 IPC, and directed the Sessions Judge to rehear the parties and record a fresh order according to law.
( 1 ) THIS revision purporting to be under Sections 399/401 Cr. P. C. is directed against the order dated 13. 8. 1993 rendered by First Addi. District and Sessions Judge, Kanpur Nagar in S. T. No. 510 of 1992 framing charge against the accused applicant under Sec. 308/34 I. P. C.
( 2 ) THE facts giving rise to the present application will need a little reference for proper appreciation of the applicable law. A first information report was lodged with the police on 16. 8. 1987 by one Rakesh Kumar Sharma conveying that he was going to Sarsaul from Kanpur on that day, and around 11 a. m. when his tempo was near Narbal tun, some scuffle took place between Nasir, the driver of tempo on one hand and Munnu Lal that is, one of the present applicants. Rakesh Kumar Sharma according to the allegations in the F. I. R. tried to intervene, whereupon Munnu Lal and Babu Singh assaulted him also with the help of Sariya iron rods causing serious injuries in the head region. The First Information Report described offence as one under Sec. 308 I. P. C. A copy of injury report has also been filed and it shows simple injuries upon the person concerned. Since the charge has been framed under Sec. 308 I. P. C. , the applicants have come in revision.
( 3 ) IN order to properly appreciate the subject matter of charge, one has to keep in mind provisions various sections of Indian Penal Code as well as Code of Criminal Procedure. For the purposes of offences under Sections 307 I. P. C. , the offence should not be/thought of unless a situation is created, whereby it could be said that there was apprehension of death. The words usually uttered while assaulting the opponents Mardo Sale Ko, Aaj jan se Mar Dab generally do not show intention but are exclamations for extra courage and creating an awe with the victim. If an attempt is made with such words even to give a thrash, it may not be an offence of attempt, to commit murder or culpable homicide. The instant case has been somewhat more simple. There was nothing in the matter of intention against the present informant. According to the F. I. R. itself, the dispute was between the tempo driver and the informant and even between them there was no indication of any mind to commit murder what to say of making any effort to cause such injury that could have been likely to cause death or even the thought of to giving rise an impression of attempt to commit culpable homicide at all.
( 4 ) FEW sections of the Code of Criminal Procedure which have to be kept in mind, arc contained in chapter XVII of the Code of Criminal Procedure. After opening of the case by the prosecution under section 226 Cr. P. C. the Court of Sessions has to either discharge, if there be good reason for it, the accused under section 227 Cr. P. C. or frame charge under section 228 Cr. P. C. Section 228 Cr. P. C. itself contains a further direction though impliedly for further application of mind by the Judge as to what offence could be said to have been committed by the accused. This, of course, is after consideration and hearing as could be thought of in view of Sec. 226 Cr. P. C. The Session Judge then has to come a conclusion if the accused has committed any offence. Here again a division take place. If the offence that can be thought of is not exclusively triable by the court of Sessions, the Sessions Judge is expected to frame charge (presumably of the offence that appears to him to have been committed and which is not cognizable by the court of Sessions) and then transfer the case for trial to the Chief Judicial Magistrate. If the Sessions Judge is of the opinion that the offence that might have been committed would be exclusively triable by the Court of Sessions, he has to frame a charge and retain the file with himself. The other factors relate to the reading ever of the charge and they may not be gone into here.
( 5 ) A judge is supposed to exercise his discretion and I mean a judicial discretion with judicious mind. The
