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Monday, March 14, 2016

to add a charge= As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo motu. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view.

Reportable



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.131 of 2016
           (@ Special Leave Petition (Criminal) No.  837 of 2016)


Anant Prakash Sinha @ Anant Sinha       …Appellant

                                   Versus

State of Haryana & Anr.                             …Respondents



                               J U D G M E N T


Dipak Misra, J.

      Despite completion of a decade from the date of solemnisation  of  the
marriage and in spite of two off springs in the wedlock,  neither  the  time
nor the expansion of family nor the concern for the  children  could  cement
the bond or weld the affinity between the appellant-husband  and  the  wife,
the 2nd respondent herein, as a consequence of which she  was  compelled  to
set the criminal law in motion by  lodging  FIR  No.  376  dated  23.11.2013
which was registered for the offences punishable under  Section  498A/323/34
of the Indian Penal Code (IPC) against the  husband  and  the  mother-in-law
alleging that the husband was insistent upon getting mutual divorce  and  on
her resistance, he had physically assaulted her and deprived  her  of  basic
facilities of life. All these allegations had the foundation  in  demand  of
dowry and non-meeting of the same by the family members of wife.  After  due
investigation, the prosecuting agency placed the  charge-sheet  against  the
husband alone for the offences punishable under Section  498A  and  323  IPC
before the learned Judicial Magistrate 1st  Class,  Gurgaon  who  eventually
vide  order  dated  04.04.2009  framed  charges  against  the  husband   for
commission of the said offences.
2.    When  the  matter  was  pending  before  the  learned  Magistrate,  an
application dated 31.07.2014 under Section 216   of  the  Code  of  Criminal
Procedure (CrPC) was filed by the informant-wife for framing  an  additional
charge under Section 406 IPC against the husband and  mother-in-law,  Renuka
Sinha. It was stated in the said  application  that  there  was  an  express
complaint with regard to misappropriation of the entire stridhan  and  other
articles and hence, the accused persons had committed breach of  trust,  but
no charge-sheet was filed in respect of the said offence. It  was  contended
that  in  her  statement  recorded  under  Section   161   CrPC,   she   had
categorically stated about misappropriation of the stridhan  by  the  family
members of her husband. The learned Magistrate took note of  the  materials,
namely, stridhan  list,  complaint  addressed  to  D.C.P.  (East),  Gurgaon,
statements recorded under Section 161 CrPC and letter dated 16.11.2013  from
Women Cell, D.C.P. (East), Gurgaon and came to  hold that  in  view  of  the
specific allegations regarding misappropriation of her  entire  stridhan  by
the husband and the other statements recorded during investigation, a  prima
facie case for criminal breach of  trust  was  made  out  and,  accordingly,
allowed the application under Section 216 CrPC against the husband  and  the
mother-in-law. Be it noted, a prayer had been made to  add  the  charge  for
the offence under Section 120B IPC also but the same  was  not  accepted  by
the learned Magistrate.
3.    The order passed by the learned Magistrate  came  to  be  assailed  in
Criminal Revision No. 5 of  2015  before  the  learned  Additional  Sessions
Judge, Gurgaon and it was contended in the revision that  the  mother-in-law
was not charge-sheeted by the police but the trial  court  had  directed  to
frame the  charge  against  her  and,  therefore,  the  whole  approach  was
erroneous.  It was also urged that there was  no  material  to  make  out  a
prima facie case under Section 406 IPC against the husband.  The  stand  put
forth by the revisionist was combatted by the prosecution as well as by  the
informant on the ground that the trial court has power to add or  alter  any
charge under Section 216 CrPC and, therefore, no exception  could  be  taken
to the order passed by the learned Magistrate.  The revisional  court  dwelt
upon the law pertaining to alteration and addition of charges  and  came  to
hold that the framing of the charge against mother-in-law was  unsustainable
but the framing of additional charge  under  Section  406  IPC  against  the
husband, the appellant herein, could not be faulted.  Being  of  this  view,
the revisional court partly allowed the revision petition by  setting  aside
the order of framing of charge against the mother-in-law.
4.    The defensibility of the aforesaid order was  called  in  question  by
the husband by preferring a petition under Section  482  CrPC  in  the  High
Court of Punjab and Haryana forming the subject matter of CRL.M.  No.  24510
of 2015. The soundness of the order was attacked by placing reliance on  the
principles as elucidated in CBI v. Karimullah  Osan  Khan[1]  and  Hasanbhai
Valibhai Qureshi v. State of Gujarat and others[2]. As is demonstrable  from
the impugned order, the learned single Judge appreciating the ratio  of  the
aforesaid decisions  has  opined  that  the  court  can  exercise  power  of
addition or modification of charge under Section 216 CrPC on  the  basis  of
material before the court. The High Court has also observed that  the  trial
court has spelt out the reasons that have necessitated for addition  of  the
charge and hence, the impugned order did not warrant  any  interference.  To
buttress the view, the High Court has drawn support from  the  authority  in
Jasvinder   Saini and others v. State (Government of NCT of Delhi)[3].
5.    We have heard Mr. Amarendra Sharan, learned senior  counsel  appearing
for the appellant and Mr.  Sanjay  Kumar  Visen,  learned  counsel  for  the
respondent-State.
6.    It is  submitted  by  Mr.  Sharan,  learned  senior  counsel  for  the
appellant that the High Court would have been well within the domain of  its
jurisdiction in exercise of power under Section 482 CrPC  in  setting  aside
the orders passed by the courts below,  for  the  Magistrate  has  no  power
under Section 216 CrPC to alter or modify the charge  on  the  basis  of  an
application filed by the informant. It is his further  submission  that  the
trial court could have altered the charge  if  some  evidence  had  come  on
record but not on the basis of the material  that  was  already  on  record.
Additionally, it is urged by Mr. Sharan that  materials  on  record  do  not
remotely attract any of the ingredients of the  offence  under  Section  406
CrPC and, therefore, addition of charge in respect of the  said  offence  is
wholly unsound and faulty. It has also been argued by Mr.  Sharan  that  the
charges could not have been added on the basis of an  application  filed  by
the informant, for such an application as required in law  is  to  be  filed
only by the Public Prosecutor.  In support of the aforesaid submissions,  he
has drawn inspiration from the authorities in Harihar Chakravarty  v.  State
of West Bengal[4], Hasanbhai Valibhai Qureshi (supra), Jasvinder  Saini  and
others (supra), Umesh Kumar v.  State  of  Andhra  Pradesh  and  another[5],
Karimullah Osan Khan (supra) and orders passed by the High Court  of  Punjab
and Haryana in Poonam and anr. V. State of  Punjab[6]  and  Anant  Sinha  v.
State of Haryana and ors.[7].
7.     Mr. Visen, learned counsel for the  respondent-State,  has  supported
the order  passed  by  the  High  Court  and  submitted  that  there  is  no
prohibition under Section 216 CrPC to alter or add a  charge  prior  to  the
recording of evidence if the court is moved for the said purpose and  it  is
satisfied that charge framed by it deserves to be altered or  an  additional
charge is required to be added.  According to him, the order passed  by  the
High Court being totally correct and impenetrable, there  is  no  reason  to
interfere with the same in exercise of jurisdiction  under  Article  136  of
the Constitution of India.  Learned counsel would further contend that  when
the Magistrate  has  jurisdiction  to  rectify  the  mistake  by  adding  or
altering the charge, he can hear the counsel for the parties and do  it  suo
motu and an application either filed by the  Public  Prosecutor  or  by  the
informant is only to bring the said facts to his notice  and  in  any  case,
that would not invalidate the order.
8.    The controversy as raised rests on two aspects. The first aspect  that
has emanated for consideration is whether without   evidence  being  adduced
another charge could be added.  In this context, we may  usefully  refer  to
Section 216 CrPC which reads as follows:-
“216. Court may alter charge.—
(1)   Any court may alter or add to any charge at any time  before  judgment
is pronounced.
(2)    Every such alteration or addition shall be read and explained to  the
accused.
(3)   If the alteration or addition to a  charge  is  such  that  proceeding
immediately with the trial is not likely, in the opinion of  the  court,  to
prejudice the accused in his defence or the prosecutor  in  the  conduct  of
the case, the court  may,  in  its  discretion,  after  such  alteration  or
addition has been made, proceed with the trial as if the  altered  or  added
charge had been the original charge.
(4)   If the alteration or addition  is  such  that  proceeding  immediately
with the trial is likely, in the opinion of  the  court,  to  prejudice  the
accused or the prosecutor as aforesaid, the court may either  direct  a  new
trial or adjourn the trial for such period as may be necessary.
(5)   If the offence stated in the altered or added charge is  one  for  the
prosecution of which previous sanction is necessary, the case shall  not  be
proceeded with until such sanction is obtained,  unless  sanction  has  been
already obtained for a prosecution on the same facts as those on  which  the
altered or added charge is founded.”

9.    The aforesaid provision has been  interpreted  in  Hasanbhai  Valibhai
Qureshi (supra) wherein the Court has observed:-
“Section 228 of the Code in Chapter XVII and  Section  240  in  Chapter  XIX
deal with framing of the charge during trial before a Court of  Session  and
trial of warrant cases by Magistrates respectively.  There  is  a  scope  of
alteration of the charge during trial on the basis of materials  brought  on
record.  Section  216  of  the  Code  appearing  in  Chapter  XVII   clearly
stipulates that any court may alter or add to any charge at any time  before
judgment is pronounced. Whenever such alteration or addition  is  made,  the
same is to be read out and informed to the accused.”


10.    In the said case, reference was made to Kantilal Chandulal  Mehta  v.
State of Maharashtra[8] wherein it has been  ruled  that  Code  gives  ample
power to the courts to alter or amend a charge  provided  that  the  accused
has not to face a charge for a new offence or is not  prejudiced  either  by
keeping him in the  dark  about  the  charge  or  in  not  giving  him  full
opportunity of meeting it and putting forward any defence  open  to  him  on
the charge finally preferred against him.   Placing  reliance  on  the  said
decision, it has been opined that if during  trial  the  trial  court  on  a
consideration of broad probabilities of the case based upon total effect  of
the evidence and documents  produced  is  satisfied  that  any  addition  or
alteration of the charge is necessary, it is free to do so,  and  there  can
be no legal bar to appropriately act as the exigencies of the  case  warrant
or necessitate.
11.   In Jasvinder Saini and others (supra), the  charge-  sheet  was  filed
before the jurisdictional Magistrate alleging commission of  offences  under
Sections 498-A, 304-B, 406 and 34 IPC against the  appellant  Nos.  1  to  4
therein.  A supplementary charge-sheet was  filed  in  which  the  appellant
Nos. 5 to 8 therein were implicated for the case to which  Section  302  IPC
was  also  added  by  the  investigating  officer.   After  the  matter  was
committed to the Court of Session, the trial court came  to  the  conclusion
that there was no evidence or material on record to  justify  framing  of  a
charge under Section 302 IPC, as a result of which charges were framed  only
under Sections 498-A, 304-B read with Section 34 IPC. When the  trial  court
was proceeding with the matter, this Court delivered the judgment in  Rajbir
alias Raju and anr. v. State of Haryana[9]  and directed that all the  trial
courts in India to ordinarily add Section 302 to the charge on Section  304-
B IPC so that death sentences could  be  imposed  in  heinous  and  barbaric
crimes against women.   The  trial  court  noted  the  direction  in  Rajbir
(supra) and being duty-bound, added the charge under Section 302 IPC to  the
one already framed against the appellant therein and further for  doing  so,
it placed reliance on Section 216 CrPC.  The said order was assailed  before
the High Court which opined that the appearance of   evidence at  the  trial
was not essential for framing of an additional charge or altering  a  charge
already framed, though it may be one of the grounds to do so.   That  apart,
the High Court referred to the autopsy surgeon which, according to the  High
Court, provided prima facie evidence for framing the  charge  under  Section
302 IPC.  Being of this  view, it  declined  to  interfere  with  the  order
impugned. This Court adverting to the facts held thus:-
“It is common ground that  a  charge  under  Section  304-B  IPC  is  not  a
substitute for a charge of murder punishable under Section 302.  As  in  the
case of murder in every case under Section  304-B  also  there  is  a  death
involved. The question whether it is murder  punishable  under  Section  302
IPC or a dowry death punishable under Section 304-B  IPC  depends  upon  the
fact situation and the evidence in the case. If there  is  evidence  whether
direct or circumstantial to prima facie support a charge under  Section  302
IPC the trial court can and  indeed  ought  to  frame  a  charge  of  murder
punishable under Section 302 IPC, which would then be the  main  charge  and
not an alternative charge as is erroneously assumed  in  some  quarters.  If
the main charge of murder is not proved against the accused  at  the  trial,
the court can look into the evidence to determine  whether  the  alternative
charge of dowry death punishable under Section  304-B  is  established.  The
ingredients constituting the two offences are different,  thereby  demanding
appreciation of evidence from the perspective relevant to such  ingredients.
The trial court in that view of the matter acted mechanically for it  framed
an additional  charge  under  Section  302  IPC  without  adverting  to  the
evidence adduced in the case and  simply  on  the  basis  of  the  direction
issued in Rajbir case. The High Court no doubt made a  half-hearted  attempt
to justify the framing of  the  charge  independent  of  the  directions  in
Rajbir case (supra), but it would have been more appropriate  to  remit  the
matter back to the trial court for fresh orders rather than lending  support
to it in the manner done by the High Court.”


12.   It is appropriate to note here, the Court further  observed  that  the
annulment of the order passed by the  court  would  not  prevent  the  trial
court from re-examining the question of framing a charge under  Section  302
IPC against the appellant therein and passing an appropriate order  if  upon
a prima facie appraisal of the evidence adduced before it, the  trial  court
comes to the conclusion that there  is  any  room  for  doing  so.  In  that
context, reference was made to Hasanbhai Valibhai Qureshi (supra).
13.   In Karimullah Osan Khan (supra), the  Court  was  concerned  with  the
legality of the order passed by the Designated  Court  under  the  Terrorist
and Disruptive Activities  (Prevention)  Act,  1987  for  Bomb  Blast  Case,
Greater Bombay rejecting the application filed  by  the  Central  Bureau  of
Investigation (for short “CBI”) under Section 216  CrPC for addition of  the
charges punishable under Section 302 and other charges  under  the  IPC  and
the Explosives Act read with Section 120-B IPC and also under  Section  3(2)
of the Terrorist and  Disruptive  Activities  (Prevention)  Act,  1987.  The
Designated Court framed charges in respect of certain offences and when  the
CBI filed an application for addition of the charge under  Section  302  IPC
and other offences, the Designated Court rejected  the  application  as  has
been indicated  earlier.  In  the  said  context,  the  Court  proceeded  to
interpret the  scope  of  Section  216  CrPC.  Reference  was  made  to  the
decisions in Jasvinder Saini (supra) and Thakur Shah  v.  King  Emperor[10].
Proceeding further, it has been ruled thus:-

“17. Section 216 CrPC gives considerable power to the trial court, that  is,
even after the completion of evidence,  arguments  heard  and  the  judgment
reserved, it can alter and add to any  charge,  subject  to  the  conditions
mentioned therein. The expressions “at any time” and  before  the  “judgment
is pronounced” would indicate that  the  power  is  very  wide  and  can  be
exercised, in appropriate cases, in the interest  of  justice,  but  at  the
same time, the courts should also see that its orders would  not  cause  any
prejudice to the accused.

18. Section 216 CrPC confers  jurisdiction  on  all  courts,  including  the
Designated Courts, to alter or add to any  charge  framed  earlier,  at  any
time  before  the  judgment  is  pronounced  and  sub-sections  (2)  to  (5)
prescribe the procedure which has to be  followed  after  that  addition  or
alteration. Needless to say, the courts can exercise the power  of  addition
or modification of charges under Section 216 CrPC, only  when  there  exists
some material before the court, which has some connection or link  with  the
charges sought to be amended, added or modified. In other words,  alteration
or addition of a charge must be for an offence  made  out  by  the  evidence
recorded  during  the  course  of  trial  before  the  court.  (See  Harihar
Chakravarty v. State of W.B. (supra) Merely because the charges are  altered
after conclusion of the trial, that itself will not lead to  the  conclusion
that it  has  resulted  in  prejudice  to  the  accused  because  sufficient
safeguards  have  been  built  in  Section  216  CrPC  and   other   related
provisions.”

14.    At  this  juncture,   we  have  to  appropriately  recapitulate   the
principles stated in Harihar Chakravarty  (supra).   In  the  said  case,  a
complaint was filed charging the appellant  and  another  for  the  offences
punishable  under  Sections  409,  406,  477  and  114  of  the  IPC.    The
complainant and his witnesses  were  examined  and  on  the  basis  of  said
evidence, the learned Magistrate had framed a charge under Section  409  IPC
against the appellant.  The appellant entered upon  his  defence  and  after
the trial, the Magistrate acquitted the  appellant  and  the  other  accused
under Section 409 IPC.  The complainant filed  a  criminal  revision  before
the High Court which set aside the  order  of  acquittal  and  remanded  the
matter to the Magistrate  for  decision  for  amendment  of  the  charge  by
examining appropriate evidence.  The said order was the  subject  matter  of
assail before this Court.  This Court, addressing to the merits of the  case
opined thus:-
“8. This was a private prosecution in which  the  complainant  came  forward
with a story that the never ordered the appellant to purchase  these  shares
and that therefore the shares did not belong to him, and he had no  interest
in them or title to them. In fact his case was that the  shares  were  never
purchased by the appellant under his instructions. All that was found to  be
false and it was found that he did order  them  to  be  purchased  and  that
therefore the shares were his. The order  which  was  made  by  the  learned
Judge in effect meant that  the  complainant  should  abandon  his  original
story to lay claim to the shares and prosecute  the  Appellant  for  another
and distinct offence which could only arise on  a  different  set  of  facts
coming into existence after the purchase of the shares. The appellant  might
or might not be guilty of this other offence, but he is  certainly  innocent
of the offence with which he was charged and for which he  was  fully  tried
and therefore he is entitled to an acquittal and the learned  Judge  had  no
power to set aside that order so long as he agreed,  as  he  did,  that  the
appellant was not guilty of the offence with which he was  charged.  Once  a
charge is framed and the accused is found  not  guilty  of  that  charge  an
acquittal must be recorded under Section 258(1) of  the  Criminal  Procedure
Code. There is no option in the matter and we are of the  opinion  therefore
that the order setting aside the acquittal was in any event bad.

9. Next as regards the direction to alter the charge so  as  to  include  an
offence for which the appellant was not originally charged, that could  only
be done if the trial court itself had taken action under Section 227 of  the
Criminal Procedure Code before it pronounced judgment. It  could  only  have
done so if there were materials before it either in the complaint or in  the
evidence to justify such action.

10. The complaint affords no material for any such case because it is  based
on the allegation that the shares did not  belong  to  the  complainant  and
that in fact they were never purchased. The learned Judge observed that  the
contention was  that  the  shares  belonged  to  the  complainant  and  were
dishonestly pledged by the appellant with the Nath  Bank.  We  do  not  find
even a word about this either in the complaint or in the examination of  the
complainant.”
                                                         [emphasis is added]

15.   After so stating, the Court opined  that  there  was  no  material  on
which the trial court could have amended the charge under Section  227  CrPC
and the learned Judge therefore had no power to direct an  amendment  and  a
continuation of the same trial as he  purported  to  do.    The  purpose  of
laying stress on the said authority is that the trial court  could  issue  a
direction for alteration of the charge if there were materials before it  in
the complaint or any evidence to justify such  action.    On  the  aforesaid
three-Judge Bench decision, it is quite vivid that if there are  allegations
in the complaint  petition  or  for  that  matter  in  FIR  or  accompanying
material, the court can alter the charge.  In Thakur Shah  v.  King  Emperor
(supra), what the Court has held is that alteration or addition of a  charge
must be for an offence made out by the evidence recorded during  the  course
of  trial  before  the  court.   It  does  not  necessarily  mean  that  the
alteration can be done only in a case where evidence  is  adduced.   We  may
hasten to clarify that there has been a reference to the  decision  rendered
in Harihar Chakravarty (supra) but the said reference has to  be  understood
in the context.  Section 216 CrPC, as is evincible, does not lay  down  that
the court cannot alter the charge solely because it has framed  the  charge.
In Hasanbhai Valibhai Qureshi (supra), it has been  stated  there  is  scope
for alteration of the charge during trial on the basis of  material  brought
on record.  In Jasvinder Saini and others (supra), it  has  been  held  that
circumstances in which addition or alteration of charge  can  be  made  have
been stipulated in Section 216 CrPC and sub-sections (2) to (5)  of  Section
216 CrPC deal with the procedure to be followed once the  court  decides  to
alter or add any charge.   It has been laid down therein that  the  question
of any such addition or alteration generally arise either because the  court
finds the charge already framed to be defective for any  reason  or  because
such addition is considered necessary after the commencement  of  the  trial
having regard to the evidence that may come before the court.  If  the  said
decision is appositely understood, it clear lays down  the  principle  which
is in consonance with Harihar Chakravarty (supra).
16.   From the aforesaid, it is graphic that the court can change  or  alter
the charge if there is defect or something is left out.   The  test  is,  it
must be founded on the material available on record. It can be on the  basis
of the complaint or the  FIR  or  accompanying  documents  or  the  material
brought on record during the course of trial. It can also  be  done  at  any
time before pronouncement of judgment.  It is not  necessary  to  advert  to
each and every circumstance.   Suffice it to  say,  if  the  court  has  not
framed a charge despite the material on record, it has the  jurisdiction  to
add a charge.  Similarly, it has the authority to  alter  the  charge.   The
principle that has to be kept in mind is that the charge so  framed  by  the
Magistrate is in accord  with  the  materials  produced  before  him  or  if
subsequent evidence comes on record. It is not to be understood that  unless
evidence has been let in, charges already  framed  cannot  be  altered,  for
that is not the purport of Section 216 CrPC.
17.   In addition to what we have stated hereinabove,  another  aspect  also
has to be kept in mind. It is obligatory on the part of  the  court  to  see
that no prejudice is caused to the accused and he is allowed to have a  fair
trial. There are in-built safeguards in Section 216 CrPC.  It  is  the  duty
of the trial court to bear in mind  that  no  prejudice  is  caused  to  the
accused as that has the potentiality to affect a fair trial.   It  has  been
held in Amar Singh  v. State of Haryana[11] that the accused must always  be
made aware of the case against them so as to enable him  to  understand  the
defence that he can lead. An accused can be convicted for an  offence  which
is minor than  the  one  he  has  been  charged  with,  unless  the  accused
satisfies the court that there has been a failure of  justice  by  the  non-
framing of a charge under a particular penal provision, and  some  prejudice
has been caused to the accused. While  so  stating,  we  may  reproduce  the
following two passages from Bhimanna v. State of Karnataka[12]:-
“25. Further, the defect must be so serious that it cannot be covered  under
Sections  464/465  CrPC,  which  provide  that,  an  order  of  sentence  or
conviction shall not be deemed to be invalid only  on  the  ground  that  no
charge was framed, or that  there  was  some  irregularity  or  omission  or
misjoinder of charges, unless the court comes to the conclusion  that  there
was also, as a consequence, a failure of  justice.  In  determining  whether
any error, omission or irregularity in framing the  charges  has  led  to  a
failure of justice, this Court must have  regard  to  whether  an  objection
could have been raised at an earlier stage during the  proceedings  or  not.
While judging the question of prejudice or guilt, the  court  must  bear  in
mind that every accused has a right to a fair trial, where he  is  aware  of
what he is being tried for and where the  facts  sought  to  be  established
against him, are explained to him fairly and clearly, and further, where  he
is given a  full  and  fair  chance  to  defend  himself  against  the  said
charge(s).

26. This Court in Sanichar Sahni v. State of  Bihar[13],  while  considering
the issue placed reliance upon various judgments of this Court  particularly
on Topandas v. State of Bombay[14], Willie  (William)  Slaney  v.  State  of
M.P.[15], Fakhruddin v. State of M.P.[16],  State  of  A.P.  v.  Thakkidiram
Reddy[17], Ramji Singh v. State of Bihar[18] and Gurpreet Singh v. State  of
Punjab[19] and came  to  the  following  conclusion:  (Sanichar  Sahni  case
(supra), SCC p. 204, para 27)

“27. Therefore … unless the convict is able  to  establish  that  defect  in
framing the charges has caused real prejudice to him and  that  he  was  not
informed as to what was the real case against him  and  that  he  could  not
defend   himself   properly,   no   interference   is   required   on   mere
technicalities. Conviction order in fact is to be tested on  the  touchstone
of prejudice theory.”

A similar view has been reiterated in Abdul Sayeed v. State of M.P.[20]”

18.   We have reproduced the aforesaid passages by abundant caution so  that
while adding or altering a charge under Section 216 CrPC,  the  trial  court
must keep both the aforestated principles in view.   The test of  prejudice,
as has been stated in the aforesaid judgment, has to be borne in mind.
19.   Presently to the second aspect. Submission of Mr. Sharan is  that  the
learned Magistrate could not have entertained the application  preferred  by
the informant, for such an application is incompetent because it has  to  be
filed by the public prosecutor. In this regard, he has laid  stress  on  the
decision in Shiv Kumar v. Hukam Chand and another[21].  In  the  said  case,
the grievance of the appellant was that  counsel  engaged  by  him  was  not
allowed by the High Court to conduct the prosecution in spite  of  obtaining
a consent from the concerned Public Prosecutor.  The trial court had  passed
an order to the extent that the advocate  engaged  by  the  informant  shall
conduct the case under the supervision, guidance and control of  the  Public
Prosecutor. He had further directed that the Public Prosecutor shall  retain
with  himself  the  control  over  the  proceedings.  The  said  order   was
challenged before the High Court and the learned single Judge  allowing  the
revision had directed that  the  lawyer  appointed  by  the  complainant  or
private person shall act under the directions  from  the  Public  Prosecutor
and may with the permission of the  court  submit  written  arguments  after
evidence is closed and the Public Prosecutor in-charge  of  the  case  shall
conduct the prosecution. This Court referred to Sections  301,  302(2),  225
CrPC and various other provisions and came to hold as follows:-

“13. From the scheme of the Code the  legislative  intention  is  manifestly
clear that prosecution in a Sessions Court cannot  be  conducted  by  anyone
other than the Public Prosecutor. The legislature  reminds  the  State  that
the policy must strictly conform to fairness in the trial of an  accused  in
a Sessions Court. A Public Prosecutor is not expected to show  a  thirst  to
reach the case in the  conviction  of  the  accused  somehow  or  the  other
irrespective of the true facts involved in the case. The  expected  attitude
of the Public Prosecutor while conducting prosecution  must  be  couched  in
fairness not only to the court and to the investigating agencies but to  the
accused as well. If an accused is entitled to any legitimate benefit  during
trial the Public Prosecutor should not scuttle/conceal it. On the  contrary,
it is the duty of the Public Prosecutor to winch it to the fore and make  it
available to the accused. Even if the defence  counsel  overlooked  it,  the
Public Prosecutor has the added responsibility to bring it to the notice  of
the court if it comes to his knowledge. A  private  counsel,  if  allowed  a
free hand to conduct  prosecution  would  focus  on  bringing  the  case  to
conviction even if it is not a fit case to be  so  convicted.  That  is  the
reason why Parliament applied  a  bridle  on  him  and  subjected  his  role
strictly to the instructions given by the Public Prosecutor.

14. It is not merely an overall supervision which the Public  Prosecutor  is
expected to perform in such  cases  when  a  privately  engaged  counsel  is
permitted to act on his behalf. The role which a private counsel in  such  a
situation can play is, perhaps, comparable with that of  a  junior  advocate
conducting the case of his senior in a court. The private counsel is to  act
on behalf of the Public Prosecutor albeit the fact that  he  is  engaged  in
the case by a private party.  If  the  role  of  the  Public  Prosecutor  is
allowed to shrink to a mere  supervisory  role  the  trial  would  become  a
combat between the private party and the  accused  which  would  render  the
legislative mandate in Section 225 of the Code a dead letter.”

20.   Being of this view, this Court upheld the order  passed  by  the  High
Court. The said decision is, in our opinion, is  distinguishable  on  facts.
The instant case does not pertain to trial or any area by  which  a  private
lawyer takes control of the proceedings.  As is evident, an application  was
filed by the informant to add a charge under Section 406 IPC as  there  were
allegations against the husband about the criminal breach of  trust  as  far
as her stridhan is concerned.   It was, in a way, bringing to the notice  of
the learned Magistrate about the defect in framing of the charge. The  court
could have done it suo motu.  In such a situation, we do not find any  fault
on the part of learned Magistrate in entertaining the said  application.  It
may be stated that the learned Magistrate has referred to the materials  and
recorded his prima facie satisfaction.  There is no error in the said  prima
facie  view.   We also do not perceive any error in the revisional order  by
which it  has  set  aside  the  charge  framed  against  the  mother-in-law.
Accordingly, we affirm the  order  of  the  High  Court  in  expressing  its
disinclination to interfere with the  order  passed  in  revision.   We  may
clarify that the entire scrutiny is only  for  the  purpose  of  framing  of
charge and nothing else. The learned Magistrate will proceed with the  trial
and decide the matter as per the evidence brought on record  and  shall  not
be influenced by any observations made as the same  have  to  be  restricted
for the purpose of testing the legal defensibility of the impugned order.
21.   Consequently, the appeal, being devoid of merit,  stands dismissed.

                                   .................................J.
                                   [Dipak Misra]



                                  .................................J.
                                        [Shiva Kirti Singh]
NEW DELHI
March, 4, 2016
-----------------------
[1]    (2014) 11 SCC 538
[2]    (2004) 5 SCC 347 : (2004) 2 RCR (Criminal) 463
[3]    (2013) 7  SCC 256
[4]    AIR 1954 SC 266
[5]    (2013) 10 SCC 591
[6]    CRR 657 of  2015 [High Court of Punjab and Haryana]
[7]    Criminal Misc. No. M-1044 of 2014 (O&M) Order dated 07.03.2014
[8]    (1969) 3 SCC 166
[9]    (2010) 15 SCC 116
[10]   (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192
[11]   (1974) 3 SCC 81
[12]   (2012) 9 SCC 650
[13]   (2009) 7 SCC 198
[14]   AIR 1956 SC 33
[15]   AIR 1956 SC 116
[16]   AIR 1967 SC 1326
[17]   (1998) 6 SCC 554
[18]   (2001) 9 SCC 528
[19]   (2005) 12 SCC 615
[20]   (2010) 10 SCC 259
[21]   (1999) 7 SCC 467

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