Heard learned counsel for the revisionist, learned A.G.A. and perused the record.
Learned counsel for the revisionist submitted that on the basis of false allegation an application was moved under Section 156(3) Cr.P.C. on which a police report was called for. According to police report no case under Section 308 I.P.C. was made out hence the direction was issued by the Magistrate concerned for the registration of the case under Sections 323, 325, 504, 506 and 452 and to investigate the matter by order dated 14.03.2005. Thereafter, a revision was filed by the opposite party no. 2. The revision was filed on 16.03.2005 and vide order dated 17.03.2005 the revision was allowed with the direction to add Section 308 I.P.C. While allowing the revision the lower revisional court has not given any opportunity of hearing to the revisionists. However, after about three years an application was moved on 29.01.2008 by opposite party no. 2 to add Section 308 in pursuance of the order dated 17.03.2005 and on that basis learned Chief Judicial Magistrate added Section 308 I.P.C. On 26.02.2008 the learned Special Chief Judicial Magistrate, Agra directed to register the case in pursuance of the order dated 17th March, 2005. The F.I.R. was registered and now a charge-sheet has been submitted. He further submitted that the injury report was fabricated and hence an application was moved on 20.03.2008, on which a direction was issued for conducting a fresh medical of the injured. The Chief Medical Officer directed to appear before medical board for conducting a fresh medical of injured Umesh Chand Jindal. However, father of the complainant did not appear before the medical board. Now the case has been committed and court proceeded under Sections 452, 308, 323, 504, 506 I.P.C. in Session Trial No. 628/2009 hence, the proceeding under section 308 I.P.C. and the impugned order dated 19.11.2009, rejecting the discharge application are liable to be set aside.
The aforesaid prayer was opposed by the learned A.G.A. on the ground that prima facie offence was disclosed even under section 308 I.P.C. considering the injuries,. Hence the present revision is liable to be rejected. He contended that according to injury report there was a linear fracture of left temporal bone, hence in view of the injury report offence under Section 308 I.P.C. is made out.
In view of the aforesaid fact whether the injury report is correct or fabricated it required to be considered by the trial court, on the basis of the evidence. Subsequently it can be decided by the trial court whether the offence is made out against the applicants/revisionists or not and if offence is made out under which section including Section 308 I.P.C.
Hence, no interference is required and accordingly the revision petition is rejected.
Order Date :- 2.2.2010 SKG