Ashok Kumar vs State

Ashok Kumar vs State

FACTS:

For a violation of Section 326 of the Indian Criminal Code, a challan was filed against petitioner Ashok Kumar at the Court of the Judicial Magistrate, 1st Class, Delhi. The process outlined in Section 251-A of the Criminal Procedure Code had to be used to try the case.

In the statement of complainant Subhash Chander, the person who is said to have assaulted Harish Chander is named as Nanhe. It is urged that Ashok Kumar is not Nanhe. The police have erroneously given the alias name of Ashok Kumar, Nanhe. deem it to be just in the interest of the proper decision of the case that Subhash Chander and Harish Chander should be examined before arriving at a decision whether a charge against the accused must be framed or not. The parties were then summoned on 13-7-1972 under section 540 of the Criminal Procedure Code. 

The petitioner thereupon filed a revision petition in the Court of Session and contended that the question of either framing a charge against him or of discharging him had to be considered by the learned Magistrate only based on the documents referred to in Section 173 Criminal Procedure Code. and that it was not open to the learned Magistrate to examine any witnesses at that stage. This contention was accepted by the learned Additional Sessions Judge, and he has submitted a report to this Court with a recommendation that the order passed by the learned Magistrate be quashed and the petitioner be discharged. This petition was first heard by a single bench judge headed by Justice Ansari. As there was divergence of opinion between some of the High Courts on the point which arises for determination in the present case and as there was no decision of the supreme Court directly on the point, it was felt by him that it was desirable that this question should be examined by a larger Bench.

PETITIONER’S CONTENTION:

The learned attorney for the petitioner has also cited a different decision by the same High Court in Manjoorkhan v. State of Mysore, which is found on page 106 of the same volume. This decision was made by a Single Bench of that High Court as well. 

In this instance, it was determined that the papers referred to in section 173 of the Cr.P.C. constitute the majority of the information that the Magistrate is expressly required by law to consider while framing the charge. The question of how section 540 of the Criminal Procedure Code applies in relation to the rules in section 251-A was not addressed in this ruling.  The knowledgeable attorney has also cited a ruling issued by the Kerala High Court in the case of Sabarimuthu Ismalias & others v. Arunambalam. This judgment, which was similarly rendered by a Single Bench of that High Court, just reiterates the Mysore High Court’s ruling in the Manjoorkhan case.

The second contention of the learned counsel for the petitioner is that the provisions of section 540 Cr. P.C. have been improperly invoked by the learned Magistrate for the purpose of filling a lacuna in the prosecution evidence as contained in the documents referred to under section 173 Cr.P.C. This contention requires the examination of facts and does not involve any question of law. 

RESPONDENTS CONTENTION NOT RECORDED AS PETITIONER’S CONTENTIONS WERE NOT ACCEPTED FIRSTLY

JUDGEMENT:

The two-bench judge found flaws in the contentions provided by the counsel for the petitioners. This includes the cases that were referred by the counsel to the High court were previously not accepted by the supreme court and hence had no grounds for acceptance in the High Court. 

It was observed that the second contention of the petitioners required the examination of facts and there was no question of law involved. The hon’ble judges therefore decided that it was not necessary for their Bench to consider this’ contention and that this contention maybe properly left for the consideration by a Single Bench.

“We therefore think that it is not necessary for this Bench to consider this’ contention and that this contention maybe properly left for the consideration by a Single Bench. We therefore send back this case to a Single Bench for deciding it in the light of the principle of law laid down by us on the scope of section 540 Cr.P.C.”, the court noted and ordered. 

written by KAUSHAL S S, [BA., LL. B], School Of Legal Studies, REVA University 

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