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
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
