Section 308 charge needs intent to cause culpable homicide; non-cognizable prosecution needs Magistrate permission before investigation.

At the charge stage, a Section 308 IPC allegation requires prima facie material showing intention or knowledge to commit culpable homicide not amounting to murder, not merely a scuffle or simple injuries; absent such material, the charge is unsustainable. For a non-cognizable offence under Section 323 IPC, police investigation and further proceedings require prior Magistrate permission under Section 155(2) CrPC; where that permission is absent, the proceedings lack legal foundation. The note states that the Section 308/34 charge was found not sustainable and the Section 323/34 proceedings were quashed once the cognizable allegation was not made out.

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Issues: (i) Whether the charge under Section 308/34 of the Indian Penal Code, 1860 was sustainable on the material before the Trial Court. (ii) Whether the proceedings under Section 323/34 of the Indian Penal Code, 1860 could continue when the offence was non-cognizable and no permission under Section 155(2) of the Code of Criminal Procedure, 1973 had been obtained.

Issue (i): Whether the charge under Section 308/34 of the Indian Penal Code, 1860 was sustainable on the material before the Trial Court.

Analysis: At the stage of charge, the Court must see whether there is a prima facie case or grave suspicion, without conducting a meticulous appreciation of evidence. For an offence under Section 308, the material must disclose an act done with intention or knowledge to commit culpable homicide not amounting to murder and circumstances showing that, if death had resulted, the act would have amounted to culpable homicide. The medical material showed simple injuries, no evidence of head injury on further examination, and no allegation in the statements that the injuries were inflicted with any intention to cause death. The record also indicated a mutual scuffle in which both sides sustained injuries.

Conclusion: The charge under Section 308/34 of the Indian Penal Code, 1860 was not sustainable and the petitioners were entitled to discharge on that count.

Issue (ii): Whether the proceedings under Section 323/34 of the Indian Penal Code, 1860 could continue when the offence was non-cognizable and no permission under Section 155(2) of the Code of Criminal Procedure, 1973 had been obtained.

Analysis: Section 323 is a non-cognizable offence, and police investigation into such an offence cannot proceed without the Magistrate's permission under Section 155(2). The fact that the FIR initially mentioned both cognizable and non-cognizable offences did not cure the absence of permission once the cognizable offence was found not to be made out. The proceedings for the non-cognizable offence therefore lacked the necessary legal foundation.

Conclusion: The proceedings under Section 323/34 of the Indian Penal Code, 1860 could not be continued and were quashed.

Final Conclusion: The revision succeeded, the petitioners were discharged from the charge under Section 308/34, and the proceedings relating to Section 323/34 were quashed.

Ratio Decidendi: At the stage of framing charge, an offence under Section 308 IPC requires material showing intention or knowledge to commit culpable homicide not amounting to murder, and a non-cognizable offence cannot be investigated or pursued without prior Magistrate approval under Section 155(2) CrPC.

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