Judgment:
Criminal Revision No.232/2012 12.03.2013 Shri S.K.Kashyap, Public Prosecutor for the applicant-State.
Shri Mahendra Choubey, Advocate appointed from the side of the Legal Service Authority.
With the consent of the learned counsel for the parties, the matter is finally heard.
By this revision under Section 397/401 of Cr.P.C.the State has challenged the order dated 19.7.2011 passed by the Additional Additional Sessions Judge, Pawai in ST No.128/2011 whereby the respondent was discharged from the offence punishable under Section 329 of IPC.
The brief facts relating to the present revision are that on 12.2.2011 at about 8:00 PM the respondent asked sum of Rs.100/- from the victim Gulsher @ Shamsher and since he did not give money, the respondent assaulted him by a stick causing various injuries whereas a compound fracture of right lower ulna was found to the victim, and therefore case was also registered for the offence under Section 329 of IPC.
The learned Additional Sessions Judge Pawai vide order dated 19.7.2011 discharged the respondent from the charges of offence punishable under Section 329 of IPC and remanded the case under Section 228 of Cr.P.C.After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that for constitution of offence under Section 329 of IPC, it is not necessary that offence of extortion should be completed.
The offence under Section 329 of IPC has two parts.
One to voluntarily causes grievous hurt to the victim and secondly to voluntarily causing grievous hurt to extort property.
It is apparent from the FIR that the respondent assaulted voluntarily to the victim causing him a grievous hurt.
It is also mentioned in the FIR that the respondent demanded a sum of Rs.100/- from the victim to consume some liquor, prior to start that assault.
Under such circumstances, assault was caused to extort sum of Rs.100/-, and therefore prima facie offence under Section 329 of IPC was made out.
It appears that the learned Additional Sessions Judge has committed an error of law in discharging the respondent from the charge of offence punishable under Section 329 of IPC.
Hence the remand order under Section 228 of Cr.P.C.is also erroneous.
It is a fit case in which revision filed by the State can be accepted.
Consequently, the present revision filed by the State is hereby allowed.
The impugned order dated 19.7.2011 is hereby set aside.
The learned Additional Sessions Judge, Pawai is directed to proceed with the case by framing the charges of offence under Section 329 of IPC along with other charges.
A copy of this order be sent to the learned Additional Sessions Judge, Pawai as well as the JMFC so that the case file may be sent to the Additional Sessions Judge, Pawai.
I have considered several orders of the learned Additional Sessions Judge, Pawai (Shri Axay Kumar Dwivedi) and it appears that either he is passing such orders due to extraneous consideration or he has no knowledge of law.
A copy of this order be sent to the District Judge Vigilance, Jabalpur with a direction that the cases disposed off by the learned Additional Sessions Judge, Pawai in last six months may be examined and a report be submitted thereafter.
Certified copy as per rules.
(N.K.Gupta) Judge Ansari