Judgment:
ORDER
P.K. Tripathy, J.
1. 20.7.98.- Heard.
2. This application under Section 482 of the Criminal Procedure Code, 1973 (in short, 'the Code') is disposed of at the stage of hearing on admission.
3. Petitioner who is one of the accused persons in G.R. Case No. 350 of 1997 of the Court of J.M.F.C, Paradeep at Kujang has challenged the order of taking cognizance for the offence under Sections 341, 323, 325, 307, 294, 506/34, IPC vide order dated 21.10.1997.
4. Learned counsel for the petitioner states that keeping in view the facts alleged, it appears that petitioner did not deal any blow whatsoever to the injured persons and apart from that the nature of the injury is simple hence cognizance for the offence under Section 307/34, IPC should not have been taken against him. In support of his contention, he relies on the case of Sarab alias Sarbeswar Pradhan and Ors. v. State of Orissa, (1995) 9 OCR 623 and Anil Kumar Chhotray and Ors. v. State of Orissa, (1996) 11 OCR 439. Learned Addl. Standing Counsel appearing for the State argues that the injury on the face had resulted in fracture of nasal bone and apart from that it is prima facie established that at the instance of the petitioners, the co-accused who is his son, assaulted the injured with an intention to kill. Therefore, a prima facie case under Section 307/34, IPC is well made out.
5. In the case of Sarbeswar Pradhan (supra) this Court found that the injuries were simple and no injury was on the vital part of the body and therefore, taking of cognizance under Section 307, IPC was interfered with. It can be noted here that nose or face of a human being is a vital part of the body. Therefore, the aforesaid ratio is not applicable to the facts and circumstance of the present case. In the case of Anil Kumar {supra) while hearing the appeal against the order of conviction this Court at paragraphs 11,12 and 13 of the cited decision, discussed the matter as to what constitute the offence under Section 307 and it has been held by this Court that it is not the nature or the gravity of the injury, but the manner in which it was dealt and the intention thereof are the relevant facts to be considered. It may be noted here that learned Magistrate has taken cognizance of the offence by taking prima facie view of the materials which exists in the record. The contention of both the parties shall be properly assessed and analysed by the Court at the time of trial. So far as it relates to existence of a prima facie case the FIR, statements and the injury certificates are sufficient to take cognizance of the offence under Section 307, IPC. Hence, there is nothing to interfere with the impugned order.
6. Learned counsel for the petitioner states that leave may be granted to the petitioner to contest on that issue at the stage of consideration of charge. The aforesaid submission is redundant inasmuch as leave of this Court is not necessary in that manner because according to the provisions in Section 228 of the Code trial Court is to consider the matter of framing of charge after hearing the parties. In other words, petitioner has a legal right to be heard at that stage. He further states that observation be made that the trial Court shall not be influenced by anything stated in this order. In that connection, it will suffice if it is mentioned here that according to the settled position of law the High Court need not readily interfere with any order of the lower Court by invoking the inherent power under Section 482 of the Code unless an exceptional case is made out relating to abuse of process of the Court or unless it is necessary for securing the ends of justice. Thus, whatever discussion which has been made is keeping in view that principle. So, there is no legal bar for the trial Court to assess the evidence to find out what offence is actually made out.
7. Learned counsel for the petitioners further submits that he will surrender in the Court of J.M.F.C. within a week and direction he issued to the Courts below to dispose his bail applications during the course of the day. Learned Addl. Standing Counsel has no objection to that submission. Hence, it is directed that if the petitioner shall surrender and apply for bail in the aforesaid manner, learned J.M.F.C, Kujang may do well to hear and dispose of the bail application in accordance with law during the first hour on the date of surrender. In the event of rejection of that bail application if application for bail shall be moved in the Court of Addl. Sessions Judge, Jagatsinghpur, that Court may do well to hear and dispose of the bail applications in accordance with law during the course of the day, provide d the L.C.R. and CD. are made available to him. Learned counsel for the petitioner further states that direction be issued for transmitting of the L.C.R. and the CD. to the Court of Addl. Sessions Judge, Jagatsinghpur by a Special Messenger at the cost of the petitioner. Hence, it is further directed that if cost of the Special Messenger shall be deposited by the petitioner, learned J.M.F.C. shall immediately transmit the record by a Special Messenger.