# Vijay Mishra Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 1137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-03
- **Case number:** Criminal Revision No. 584 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-mishra-revisionist-v-state-of-u-p-anr-48635
- **Pages:** 6

## Headnote

Civil Law - Code of Civil Procedure, 1908
- Section 228 (1) (a) -Indian Penal Code,
1860 - Section 308 IPC-for transferring the
case to Magistrate-rejected-Revisionist claim
that no injury was life threatening-section 308
IPC to be expunged and case be transferred
to
the
Magistrate-Medical
examination-all
injuries on vital part-prima facie the act was
with intention or knowledge of causing deathif he fails in his attempt he still guilty of
committing an offence punishable u/s 308
IPC-the case cannot be transferred to the
Magistrate.

Revision dismissed. (E-9)
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, legislative mandate in Section 308 is that
whoever does any act with such intention or
knowledge and under such circumstances that,
if he by that act caused death, he would be
guilty of culpable homicide not amounting to
murder, but inspite of the effort made by him
he completely fails to achieve his goal of
committing culpable homicide not amounting to
murder, he shall still be held guilty of
committing an offence under Section 308 I.P.C.
and he shall be punished with imprisonment of
either description for a term which may extend
to three years, or with fine, or with both.
However, if by his attempt hurt is caused to any
person by such act, shall be yet be guilty of
committing an offence under Section 308 I.P.C.
and in such a situation a higher punishment of
imprisonment of either description for a term
which may extend to seven years, or fine, or
both will be inflicted upon the accused. (para
15)

## Text

6 All. Vijay Mishra Vs. State of U.P. & Anr.
1137
by the prosecution under Sections 91 or
311 of the CrPC or Section 165 of the
Evidence Act. Depending on the facts of
each case, and the Court exercising
discretion after seeing that the accused is
not prejudiced by want of a fair trial, the
Court may in appropriate cases allow the
prosecution to produce such certificate at a
later point in time. If it is the accused who
desires to produce the requisite certificate
as part of his defence, this again will
depend upon the justice of the case -
discretion to be exercised by the Court in
accordance with law."

22. Section 311 Cr.P.C. empowers the
court that if the court considers the
evidence of witnesses to be essential for a
just and fair decision of the case, it can
summon such a person not only on the
motion of either prosecution or of the
defence case, but, also it can do so on its
own motion. The court has power to recall
any witness or witnesses already examined
or to summon any witness even if the
evidence in both sides is closed so long as
the court retains seisin of the criminal
proceedings.

23. In the present case, the two
Compact Discs have already been supplied
to
the
accused-revisionist
and
only
certificates under section 65-B of the
Indian Evidence Act have been allowed to
be produced to prove and by allowing the
application under section 311 Cr.P.C., this
court does not find that the accusedrevisionist is prejudiced in any manner by
producing the certificates in respect of the
electronic record/evidence, which are being
relied upon by the prosecution, which have
already been supplied to the accusedrevisionist at the stage of complying with
the provisions of Section 207 Cr.P.C. The
trial court has exercised its discretion as
vested in it under section 311 Cr.P.C. for
just and valid reasons for rendering a just
and proper decision in the trial and
therefore, this court does not find that there
is any error of law or jurisdiction which has
been committed by the trial court by
allowing the application of the C.B.I. under
section 311 Cr.P.C. by the impugned order.

24. Thus, this court, does not find that
there is any scope for interference with the
impugned order and the present revision is
dismissed.
----------
(2022)06ILR A1137
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.06.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 584 of 2022

Vijay Mishra ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ram Prakash Singh, Sri Vivek Kumar

Counsel for the Opposite Parties:
Govt. Advocate

Civil Law - Code of Civil Procedure, 1908
- Section 228 (1) (a) -Indian Penal Code,
1860 - Section 308 IPC-for transferring the
case to Magistrate-rejected-Revisionist claim
that no injury was life threatening-section 308
IPC to be expunged and case be transferred
to
the
Magistrate-Medical
examination-all
injuries on vital part-prima facie the act was
with intention or knowledge of causing deathif he fails in his attempt he still guilty of
committing an offence punishable u/s 308
IPC-the case cannot be transferred to the
Magistrate.

Revision dismissed. (E-9)
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, legislative mandate in Section 308 is that
whoever does any act with such intention or
knowledge and under such circumstances that,
if he by that act caused death, he would be
guilty of culpable homicide not amounting to
murder, but inspite of the effort made by him
he completely fails to achieve his goal of
committing culpable homicide not amounting to
murder, he shall still be held guilty of
committing an offence under Section 308 I.P.C.
and he shall be punished with imprisonment of
either description for a term which may extend
to three years, or with fine, or with both.
However, if by his attempt hurt is caused to any
person by such act, shall be yet be guilty of
committing an offence under Section 308 I.P.C.
and in such a situation a higher punishment of
imprisonment of either description for a term
which may extend to seven years, or fine, or
both will be inflicted upon the accused. (para
15)

(Delivered by Hon'ble Subhash Vidyarthi J.)

1.

Heard
Sri
Anoop
Kumar
Upadhyay, Advocate holding brief of Sri
Ram Prakash Singh, learned counsel for the
revisionist and Sri Tilak Raj Singh, learned
A.G.A. for the State respondents and
perused the record.

2. The instant revision under Sections
397/401 of the Criminal Procedure Code
has been filed by the accused-revisionist
seeking to challenge the validity of the
order dated 27.05.2022 passed by the
learned Sessions Judge, Gonda in Sessions
Trial No. 338 of 2022 (State vs. Vijay
Mishra & Others), arising out of Case
Crime No. 90 of 2019, under Sections 323,
325, 308 I.P.C., Police Station- Umari
Begumganj, District- Gonda whereby the
application under Section 228 (1) (a) of the
Cr.P.C. filed on behalf of the accusedrevisionist for transferring the case to the
Court of Magistrate, has been rejected.

3. The aforesaid case has been
instituted on the basis of an F.I.R. alleging
that the four named accused persons,
including the revisionist, had assaulted the
informant's brother with sticks, because of
which he fell unconscious. The injured was
taken to the police station while he was still
unconscious. On these allegations, the
F.I.R. was registered in respect of offences
under Sections 323, 325 and 308 I.P.C.

4. The medical examination report of
the injured mentions following injuries
suffered by the victim:-

1. Lacerated Wound - 8 x .5cm I
Bron above (Right) ear.

2. Lacerated Wound - 4.8 cm x
1cm Top of Head.

3. Lacerated Wound - 2x2 cm
(Right) Leg above 12cm (Right) Ankle.

4. Contused- Swelling 6x4 cm
over right shoulder.

5. Contused- Swelling over (Left
Right) wrist all around.

6. Swelling over (Right) Ankle.

7. Complaint of Pain- Over back
of chest abdomen B/ 1 upper & lower
limbs.

8. Contusion 25cm X 13cm right
side back of chest.

5. On the basis of the aforesaid F.I.R.,
a Sessions Trial No. 338 of 2022 has been
instituted, which is pending before the
learned Sessions Judge, Gonda.
6 All. Vijay Mishra Vs. State of U.P. & Anr.
1139

6. The accused persons filed an
application under Section 228 (1) (a) of
Cr.P.C. in the aforesaid Session Trial
stating that none of the injuries reported in
the medical examination report of the
injured person indicates that death could
have been caused by such injury. As there
is no injury which could be life threatening,
prima facie no offence under Section 308
I.P.C. is made out and it can at the most
lead to commission of offences punishable
under Section 323 and 325 I.P.C., both of
which are triable by a Magistrate. The
accused persons accordingly prayed that
Section 308 I.P.C. may be expunged and
the case be transferred to the Court of
Magistrate for its trial.

7. The aforesaid application was
rejected by the learned Sessions Judge,
Gonda by means of the order dated
27.05.2022 holding that the injured has
suffered injuries on his head and head
injuries
could
be
life
threatening.
Therefore, the accused persons have rightly
been charged with an offence under Section
308 I.P.C. Accordingly, the application
filed under Section 228 (1) (a) Cr.P.C. has
been rejected.

8. Assailing the aforesaid order dated
27.05.2022 before this Court in Revision,
the learned counsel for the revisionist has
submitted that the order dated 27.05.2022
has been passed in a mechanical manner
without properly considering the evidence
available on record, which does not support
the prosecution story regarding commission
of an offence under Section 308 I.P.C. The
learned counsel for the revisionist has
further submitted that the ingredients of
Section 308 I.P.C. are not made out in the
present case and this aspect has been
ignored by the learned court below.

9. On the other hand, Sri Tilak Raj
Singh, learned A.G.A. has submitted that
there is sufficient material on record to
indicate commission of an offence under
Section 308 I.P.C. and the order dated
27.05.2022 passed by the learned court
below is based on sound reasons and it
needs no interference by this Court in
exercise of the revisional jurisdiction.

10. Before proceeding to decide the
rival submissions made before this Court, it
would be appropriate to look at the
provisions of Section 308 I.P.C., which
provides as follows:-

"308. Attempt to commit culpable
homicide.--Whoever does any act with such
intention or knowledge and under such
circumstances that, if he by that act caused
death, he would be guilty of culpable
homicide not amounting to murder, shall be
punished
with
imprisonment
of
either
description for a term which may extend to
three years, or with fine, or with both; and, if
hurt is caused to any person by such act,
shall be punished with imprisonment of either
description for a term which may extend to
seven years, or with fine, or with both.
Illustration A, on grave and sudden
provocation, fires a pistol at Z, under such
circumstances that if he thereby caused death
he would be guilty of culpable homicide not
amounting to murder. A has committed the
offence defined in this section."

11. The essential ingredients of the
first part of Section 308 I.P.C. are that

(i) a person does any act

(ii) with intention or knowledge
to
commit
culpable
homicide
not
amounting to murder,
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
that
the
offence
was
committed under such circumstances that if
by that act the accused caused death, he
would be guilty of culpable homicide not
amounting to murder.

12. A bare perusal of the aforesaid
statuory mandate makes it clear that by
enacting Section 308 I.P.C., the Legislature
has made a composite provision in order to
deal with two spearate situations.

13. The first part of Section 308 does
not make any inference to any hurt being
caused by the accused persons and,
therefore, any hurt being caused is not an
essential condition to attract the provisions
of Section 308 I.P.C.

14. The second part of Section 308
provides that if hurt is caused to any person
by an act which falls within the purview of
the Section, the accused shall be punished
with imprisonment of either description for
a term which may extend to seven years, or
with fine, or with both.

15. A combined reading of both the
parts of Section 308 clarifies that the
legislative mandate in Section 308 is that
whoever does any act with such intention
or
knowledge
and
under
such
circumstances that, if he by that act caused
death, he would be guilty of culpable
homicide not amounting to murder, but
inspite of the effort made by him he
completely fails to achieve his goal of
committing
culpable
homicide
not
amounting to murder, he shall still be held
guilty of committing an offence under
Section 308 I.P.C. and he shall be punished
with imprisonment of either description for
a term which may extend to three years, or
with fine, or with both. However, if by his
attempt hurt is caused to any person by
such act, shall be yet be guilty of
committing an offence under Section 308
I.P.C. and in such a situation a higher
punishment of imprisonment of either
description for a term which may extend to
seven years, or fine, or both will be
inflicted upon the accused.

16. Now I proceed to consider the
submission made by the learned Counsel
for the Revisionist that the medical
examination report does not mention any
injury on any vital part of the victim's body
and, therefore, prima facie the accusedrevisionist cannot be tried for an offence
under Section 308 I.P.C. and he can only be
tried for offences under Section 323 and
325 I.P.C., both of which are triable by
Magistrate and, therefore, his case should
be transferred from the Court of Sessions to
a Court of Magistrate under Section 228 (1)
(a), Cr.P.C. This contention is liable to be
rejected for two reasons. First, the medical
examination report of the injured shows
that he has suffered a Lacerated Wound of
size 8x.5cm above his right ear, a Lacerated
Wound of size 4.8 cm x 1cm on the top of
his head and he has also suffered a
Contusion of size 25cm X 13cm on the
right side of back of his chest. All these
injuries are on vital parts of the injured's
body and, therefore, the contention of the
learned Counsel for the revisionist that the
accused-revisionist did not cause any injury
on any vital part of the injured's body is
incorrect and the same is rejected.

17. Secondly, assuming that the
injured did not suffer any injury on any
vital body of his body, even then prima
facie it appears that the accused-revisionist
committed an act with an intention or
knowledge and under such circumstances
that, if he by that act caused death, he
would be guilty of culpable homicide not
6 All. Vijay Mishra Vs. State of U.P. & Anr.
1141
amounting to murder, then even if the
accused-respondent failed completely in his
attempt and he could not inflict any hurt on
the body of the injured, the accusedrevisionist
would
still
be
guilty
of
committing an offence punishable under
the first part of Section 308 I.P.C. and he
has to face a trial for the said offence. For
this reason also, the contention of the
learned Counsel for the revisionist is liable
to be rejected.

18. The order under challenge in this
revision
has
been
passed
upon
an
application filed by the accused under
Section 228 (1) (a) of Cr.P.C., which reads
as under:-

"228. Framing of charge.

(1 )If, after such consideration
and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming
that the accused has committed an offence
which-

(a) is not exclusively triable by
the Court of Session, he may, frame a
charge against the accused and, by order,
transfer the case for trial to the Chief
Judicial Magistrate, and thereupon the
Chief Judicial Magistrate shall try the
offence in accordance with the procedure
for the trial of warrant- cases instituted on
a police report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the Judge frames any
charge under clause (b) of sub- section (1),
the charge shall be read and explained to
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

19. Since from the discussion made
above, the contention of the accusedrespondent that no injury has been caused
on any vital part of the body of the injured
and, therefore, the charges against him at
the most make out a case under Section 323
and 325 I.P.C. and no offence under
Section 308 I.P.C. is made out, has already
been rejected, therefore, the accusedapplicant cannot maintain an application
under Section 128 (1) (a) Cr.P.C. for
transferring the case from the Court of
Sessions to a Court of Magistrate on the
ground that no offence under Section 308
I.P.C. is made out against him.

20.

Whether
the
accused
has
committed the offence punishable under
Section 308 I.P.C. or not and if yes, whether
his act would fall under the first part of
Section 308 or in the second part thereof, are
matters to be decided during the trial and at
this stage only this much can be said that the
accused has to face trial for the offence
under Section 308 I.P.C., which is triable by
a Court of Sessions and, therefore, the case
cannot be transferred to a Court of a
Magistrate.

21. Keeping in view the aforesaid
discussions, this Court is of the considered
view that the order dated 27.05.2022 passed
by the learned Sessions Judge, Gonda,
rejecting
the
accused-revisionist's
application under Section 228 (1) (a) Cr.P.C.
does not suffer from any illegality so as to
call for an interference by this Court in
exercise of its revisional jurisdiction..

22. The revision lacks merit and is,
accordingly, dismissed.
1142 INDIAN LAW REPORTS ALLAHABAD SERIES

23. However, there is no order as to
costs.
----------
(2022)06ILR A1142
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 494 of 2022

Vikas Asthana ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajesh Chandra Mishra, Sri Akhilesh
Kumar Kalra

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Code of Criminal
Procedure,
1973
-
Section
227Application
for
discharge
rejectedchallenged-probative value of the material
on record cannot be gone into -material
on record has to be accepted as true-it
shows
prima
facie
case
against
accused=no
right
to
produce
any
document at the stage of framing of
charges-power of discharging should be
exercised very sparingly.

Revision dismissed. (E-9)

List of Cases cited:

1. St. of Orissa Vs Devendra Nath Padhi

2. Rekha Jain Vs St. of Karn. & anr.; 2022 SCC
online SC 585

3. Sanjay Kumar Rai Vs St. of U. P. & anr.; 2021
SCC Online SC 367

4. N. Vijay Kumar Vs St. of T. N.; (2021) 3 SCC
687;
5. Central Bureau of Investigation, Hyderabad
Vs K. Narayana Rao; (2012) 9 SCC 512

6. Archana Rana Vs St. of U.P. & anr.; (2021) 3
SCC 751.

7. St. of Raj. Vs Fatekh Karan Medhu; (2017) 3
SCC 198

8. St. Represented By Deputy Superintendent of
Police, Vigilance And Anti-Corruption, Tamil
Nadu Vs J. Doraiswamy & ors. (2019) 4
Supreme Court Cases 149

9.
Srilekha
Sentil
Kumar
Vs
Deputy
Superintendent Of Police, Central Bureau OF
Investigation, ACB, Chennai; (2019) 7 SCC 82

10. St. By Karnataka Lokayukta, Police Station,
Bengaluru Vs M. R. Hiremath; (2019) 7 SCC 515

11. M. E. Shivalingamurthy Vs Central Bureau of
Investigation, Bengaluru; (2020) 2 SCC 768
(Delivered by Hon'ble Brij Raj Singh, J.)

1. This criminal revision has been
filed with a prayer to set aside the order
dated 26.02.2022 passed by Additional
Session Judge/Special Judge, Prevention of
Corruption Act, 1988, Court No. 9,
Lucknow in Criminal Case No. 957 of
2018 (State Vs. Vikas Asthana & Others)
whereby the application for discharge filed
by the revisionist has been rejected as well
as to quash the order dated 06.04.2022
whereby the ourt below has framed the
charges against the revisionist under
Section 7/13 (1) (d) read with Section 13
(2) of the Prevention of Corruption Act,
1988, under Section 8/13 (1) (d) read with
Section 13 (2) of the Prevention of
Corruption Act, 1988, under Section 420
I.P.C. and under Section 120B I.P.C.
arising out of Case Crime No. 264 of 2017,
under Sections 7, 8, 13 (1) (d) and 13 (2) of
the Prevention of Corruption Act, 1988 and
Sections 410, 420, 120B, 34 I.P.C, PS