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2024 Supreme(All) 342
IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Shamsher Bahadur And Others – Appellants
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And Another – Respondents
Application U/S 482 No. - 2257 of 2024
Decided on : 15-03-2024
For the Appellant : Alok Srivastava
IMPORTANT POINT
The court emphasized the provisions of Section 308 IPC and the Magistrate's power to take cognizance of any offense upon a police report of the facts constituting an offense.
Headnote:
Section 308 IPC - Quashing of charge sheet under Sections 323, 504, 506 IPC - [Sections 308, 323, 504, 506 IPC] - The court discussed the provisions of Section 308 IPC, emphasizing that the offense can be made out even in the absence of any injury. It also highlighted the Magistrate's power to take cognizance of any offense upon a police report of the facts constituting an offense, even if the police report omits to mention the offense made out.
Fact of the Case:
The applicant sought quashing of the charge sheet and the order taking cognizance of offenses under Sections 323, 504, 506 & 308 IPC. The victim alleged that the accused damaged the boundary between their fields and attacked him, causing injuries.
Finding of the Court:
The court rejected the applicant's submission that the offense under Section 308 IPC was not made out due to the absence of abnormality in the victim's x-ray examination. It also held that the trial court did not commit any error in taking cognizance of the offense when a case for taking cognizance of offenses was made out from the material placed before it.
Issues: Validity of the order taking cognizance of offenses and quashing of the charge sheet.
Ratio Decidendi: The court emphasized that the offense under Section 308 IPC can be made out even in the absence of any injury. It also highlighted the Magistrate's power to take cognizance of any offense upon a police report of the facts constituting an offense, even if the police report omits to mention the offense made out.
Final Decision: The application lacked merit and was dismissed.
JUDGMENT :
1. Heard Sri Alok Srivastava-II, the learned counsel for the applicant and Ms. Charu Singh, the learned AGA for the State and perused the records.
2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has sought quashing of charge sheet no 1 of 2023 dated 01.04.2023, under Sections 323, 504, 506 IPC, submitted in furtherance of FIR No. 120/2023, the order dated 08.12.2023 passed by the Additional Chief Judicial Magistrate, Court No. 16, Barabanki, taking cognizance of offences under Sections 323, 504, 506 & 308 IPC and summoning the accused persons to face trial of the offence and at the same time issuing an order for further investigation and calling for an explanation from the Investigating Officer as to why recommendation be not made for initiating departmental inquiry and action against him for not conducting the investigation properly.
3. The opposite party no. 2 had lodged FIR No. 120/2023 on 28.03.2023 against the applicants, stating that the agricultural lands of the complainant and the accused persons are adjoining each others’ land. The accused persons had damaged Med (boundary) dividing the two fields in the morning of 28.03.2023 and when the opposite party no. 2 objected against it, the accused persons attacked him with sticks and a spade causing injury on his hand and head.
4. The medico legal examination report of the victim mentions an incised wound on his head, contusions on left hand and left knee and an abrasion on chest and abdomen. The incised wound was opined to have been causes by some sharp object/weapon and the other injuries were caused by some hard and blunt object and the injuries were fresh.
5. The opposite party no. 2 reiterated the FIR allegations while recording her statement under Section 161 Cr.P.C.
6. The Investigating Officer recorded statements of two independent witnesses, both of whom stated that the accused persons had abused and assaulted the opposite party no. 2 and the accused persons had left threatening them after intervention of the witnesses.
7. After investigation, the Investigating Officer submitted a charge-sheet dated 01.04.2023 for offences under Sections 323, 504, 506 IPC only.
8. While assailing validity of the aforesaid order, the learned counsel for the applicant has submitted that in x-ray examination of the victim, no abnormality has been detected and, therefore, the offence under Section 308 IPC is not made out.
9. Section 308 IPC provides as follows:-
“308. Attempt to commit culpable homicide.—
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration: A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.”
10. A bare perusal of Section 308 IPC indicates that there is absolutely no necessity of causing of any injury for making out an offence under Section 308 IPC and even in absence of any hurt having been caused, an offence to commit culpable homicide is made out and in such a case, it will be punishable with imprisonment which may extend to three years. In case hurt is caused in the incident, the offence becomes punishable with imprisonment which may extend to seven years, even if the hurt is not grievous, i.e. if the hurt is simple. Therefore, the submission of the learned counsel for the applicant that in absence of any abnormality having been reported in the x-ray examination of the opposite party no. 2, offence under
