Gurbaz Singh v. State

Order Dasti. (MUKTA GUPTA) JUDGE MARCH 01, 2012 dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Rev.P. 222/2010 & Crl.M.A. No. 6058/2010(Stay) % Reserved on: 16th February, 2012 Decided on: 1st March, 2012 GURBAX SINGH & ANOTHER ..... Petitioners Through: Mr. Aman Lekhi, Sr. Advocate with Mr. Neeraj Jain, Ms. Preity and Ms. Shristi, Advocates. Versus STATE ..... Respondent Through: Mr. Manoj Ohri, APP with SI Devender Singh, PS Tilak Nagar. Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By this petition, the Petitioners challenge the order dated 28th April, 2010 whereby the learned Trial Court directed framing of charge for offences under Sections 325/506/34 IPC against the Petitioners. The grievance of the Petitioners is that even as per the complaint it is alleged that the Petitioners slapped and threatened the Complainant Bharat Bhushan due to which blood started oozing out from his ear on which they ran away from the spot, thus, at best the Petitioners can be charged for offences under Sections 323/506 IPC. 2. Learned counsel for the Petitioners contends that the opinion of the doctor that there is perforation in the ear and thus the injury was grievous in nature is incorrect. Grievous injuries have been defined under Section 320 IPC and in case the injury falls in anyone of those categories, the accused can be charged for having committed the offence of causing grievous injury. From the facts on record, it is evident that there was no intention to cause a grievous injury. It is stated that the investigating officer filed an application before the doctor for giving the opinion again, however, no opinion was rendered. Thus, the investigating officer, also, was of the opinion that no case of grievous injury is made out. 3. As per the chargesheet, the Complainant did not cooperate and did not get himself examined thereafter and on this fact being brought to the notice of the senior officers, they directed filing of the chargesheet. Thus, the SHO concerned filed the chargesheet. It is stated that there is no opinion of the SHO himself and in the absence of forming an opinion of the SHO concerned, no chargesheet can be filed. It is further contended that the opinion of the doctor is not binding on the Court and even at the stage of charge, the Court has to look into the material to find out whether the necessary ingredients of Section 325 IPC are made out. Relying upon M.C. Mehta (Taj Corridor Scam) vs. Union of India and Ors. 2007 (1) SCC 110 learned counsel for the Petitioners contends that in the absence of opinion of SHO concerned on filing of the chargesheet, this Court in exercise of its power under Section 482/483 Cr.P.C. will quash the chargesheet and the proceedings pursuant thereto. 4. Learned APP for the State, on the other hand, contends that a perusal of the MLC shows that there was a traumatic perforation in the right ear pursuant to which the complainant had pain in the ear and decreased hearing following trauma. In view of the fact that the ear membrane got perforated, provision of Section 325 IPC is prima facie attracted and whether the same is finally made out or not, the Court will form an opinion only after the entire evidence is led during trial. It is further contended that the intention of the Petitioner is writ large from the fact that by putting the revolver on the ear of the Complainant, the Petitioner threatened him to withdraw the complaint filed in the Court of the learned Metropolitan Magistrate and slapped him so badly that blood started oozing out from his ear. Even in the absence of re- medical examination and a further opinion of the doctor, this Court on the basis of the existing MLC can prima facie form an opinion that a case of grievous injury is made out. Thus, there is no infirmity in the impugned order and the petition be dismissed. 5. I have heard learned counsel for the parties. On 3rd October, 2002 FIR No. 762/2002 was registered on the complaint of Bharat Bhushan wherein he alleged that at about 5:45 a.m. in the morning Gurbax (Montoo