lissing perme (unemployed) 07 April 2011

question of procedure

One month back it happened that; my agriculture land caretaker visited my village.As he was a habitual drunker that day also he got drunk and started to distributed the people in market place.At that time my younger brother was also present there and after seeing my younger brother he started to asked for buying one bottle of wine for him.My younger brother try to persuade him not to disturb my younger brother and other people many time but he insisting for one bottle of wine.Thereafter my younger brother slap (one time) and pushed him and asked him to go home just to safe him from the anger of people as the people there was getting angry on him for his unwanted behavior.After that he left for his home.

On next morning I was informed that he got ill so I rushed to his house and I took him to Hospital. In hospital his relative came and thereafter I came back to my village.Latter on I was informed that he died.

Again two day after the incident i was arrested by the police on the charge under section 204/304 and I was kept in jail for 5 days though I am innocent in the case.It was only after arrest of my younger brother I was released on bail.

Now after investigation police also submitted that I am no way involved in case .But the Judicial Magistrate First Class did not discharge me on the ground that as section 304 is trail able by the Session Court, he/Judicial Magistrate Frist Class has no power to discharge me.
Now my quires are:

1.-Is the stand of magistrate right??

2-Is insert of Section 304 right in this case??? as the medical report also said that there was no injury mark and deceased had a chronic disease.

3.Do magistrate has no power to change the section wrongly inserted by the Police in this case.

4.Possible remedies for me and my younger brother.

5-Meaning of section 204 in this case.

6-Any other legal advice with citation of SC/HC.

Thank's in advance

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3 Replies

Shailendra prasad singh (Lawyer) 07 April 2011

Possible remedies for me and my younger brother---it is a fit case for quashing.

lissing perme (unemployed) 08 April 2011

Sir thanks for reply.

But I need futher guidance from the members.

thank's again

Shailendra prasad singh (Lawyer) 09 April 2011

1.-Is the stand of magistrate right??- YES : The magistrate is not bound to accept police report, after submission of charge sheet and upon protest the magistrate may do one of 3 things 1. he may decide that there is no sufficient ground of proceeding further and drop action against accused 2. he may take cognizance against all accused on the basis of police report : this he may without being bound in any manner by the conclusion arrived at by the police in their report 3. he may take cognizance of the offence u/s 190 (1) (a) on the basis of the original complaint or protest petition and proceed the examine upon oath the complainant and his witnesses as u/s 200.

2-Is insert of Section 304 right in this case??? as the medical report also said that there was no injury mark and deceased had a chronic disease.- The police generally insert any section on the basis of contents made in FIR. but upon medical report as u say the insertion of sec. 304 is wrong.

3.Do magistrate has no power to change the section wrongly inserted by the Police in this case.- It is a depending upon protest either by informant or PP.

4.Possible remedies for me and my younger brother- it is a fit case for quashing.

5-Meaning of section 204 in this case.- 204. Issue of process—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (I) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint,

(5) Nothing in this section shall be deemed to affect the provisions of Section 87

6-Any other legal advice with citation of SC/HC- read it carefully- link- https://www.indiankanoon.org/doc/746892/