JAYANTILAL VRAJLAL BAROT v. STATE — 1967 DIGILAW 95 (GUJ)

J. M. SHETH, J. ( 1 ) MR. Thakore the learned Advocate for the appellant firstly contended that the order of conviction of the appellant for the offence punishable under sec. 325 carrot be sustained. The reason advanced was that originally the charge framed against the appellant after looking into the police-papers was for the offence punishable under sec. 323 of the Indian Penal Code though the charge sheet was sent by the police against the appellant to the Court for the offences under secs. 323 and 325 of the Indian Penal Code. This was a case tried as a warrant case. Charge having been framed only for the offence punishable under sec. 323 of the Indian Penal Code by a necessary implication the appellant was discharged for the offence punishable under sec. 325 of the Indian Penal Code. It was a case of an implied discharge and the discharge order without having been set aside by the Superior Court in its revisional jurisdiction the Magistrate has no power to alter or add to the charge which would result in review of his own previous order. In support of this argument of his he invited my attention to the case of Appabhai Hemabhai v. The State of Gujarat III Gujarat Law Reporter 14. A division Bench of this High Court has observed therein as under:-In an inquiry or proceeding under Chapter XVIII of the Code of Criminal Procedure the Magistrate without recording reasons simply declined to commit the accused to the Court of Sessions under sec. 307 read with sec. 34 of the Indian Penal Code but framed a charge under sec. 326q read with sec 34 of the Penal Code. On a question whether the Sessions Judge had jurisdiction under sec 437 of the Code of Criminal Procedure to direct the Magistrate to commit the accused to the Court of Sessions on a charge under sec 307 read with sec 34 of the Indian Penal Code:-HELD that when a Magistrate declines to commit an accused to the Court of Session he brings to termination the proceeding or inquiry under Chapter XVIII of the Code of Criminal Procedure and commences a separate and distinct proceeding under Chapter XXI of the Code. In this sense it can be said that the accused is discharged and if in the opinion of the Sessions Judge the accused is improperly discharged the Session Judge would have jurisdiction under sec. 437 of the Code of Criminal Procedure to interfere and direct the Magistrate to commit the accused to the Court of Session. The words improperly discharged have been used in sec. 437 of the Code of Criminal Procedure in relation to or in the context of the words case and matter and not in connection with or relation to the word offence though no doubt. the case or the matter must be in relation to or concerning an offence exclusively triable by the Court of Session Nevertheless discharge as contemplated in sec 437 is from the case or matter in respect of which the Sessions Judge directs the Magistrate to commit an accused person to the Court of Session. Though it is reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act the presumption is not of much weight and the same word may be used in different senses in the same statute and even in the same section The word discharge has been used in the Code of Criminal Procedure in different contexts and to meet different situations and has therefore different connotations depending upon where it is used. It would be consequently erroneous to contend that the word discharge should be given the same meaning wherever and whenever it occurs in the Code. The words discharge him in sec. 207 (6) of the Criminal Procedure Code mean discharging an accused from that proceeding and exonerate him from the obligation to make his appearance and to make his plea in connection with that proceeding. Under sec. 253 the discharge of an accused person would be from the offence for which a complaint has been filed. Under sec. 494 the discharge is not a total one from the proceeding or trial but only to the extent of the offence or the offences in respect of which the prosecution against the accused is withdrawn. The word unless used in sec. Under sec. 494 the discharge is not a total one from the proceeding or trial but only to the extent of the offence or the offences in respect of which the prosecution against the accused is withdrawn. The word unless used in sec. 207a (6) of the Code of Criminal Procedure must mean that if the Magistrate after discharging an accused from the previous proceeding under Chapter XVIII finds that he should be tried of a lesser offence before himself or before some other Magistrate which lesser offence is revealed by the same facts and evidence he shall proceed accordingly. The word unless has been deliberately inserted by the Legislature in sub-sec. (6) of sec. 207 (A) immediately after the words discharge him. The discharge therefore would not be a total discharge in that the accused is set at liberty or released. But in a sense the discharge is total in respect of the case or matter which was exclusively triable by the Court of Session. It is significant to note that our High Court dissented from the view taken by Allahabad High Court in the decision reported in A. I. R 1952 All. 231 and preferred the view taken by the Calcutta High Court in the decision reported in 60 Calcutta Weekly Notes 708 and the view taken by the Madras High Court in the decision reported in A. I. R. 1963 Madras 801 The same view has been taken by the Supreme court in its unreported decision in Criminal Appeal No. 213 of 1964 in the case of Ramekhal Tiwari v. Madan Mohan Tiwari and another (A. I. R 1967 S. C 1156 decided on 17-1-1967. The Supreme Court has approved the view taken by the Madras High Court and the Calcutta High Court and has disapproved the view taken by the Allahabad High Court. The Supreme Court has approved the view taken by the Madras High Court and the Calcutta High Court and has disapproved the view taken by the Allahabad High Court. In all those decisions the question that was posed was that when a Magistrate finds that there are no grounds for believing that an offence exclusively triable by the Sessions Court has been committed but finds that a lesser offence triable by him appears to have been committed and declines to commit the accused to the Session Court for the offence triable by the Sessions Court whether the Sessions Court has got powers to direct the Magistrate to commit the case to the Sessions Court for the trial of the offence exclusively triable by the Sessions Court it was urged in those decisions that there being no express discharge the powers referred to in sec. 437 of the Criminal Procedure Code could not be exercised by the Sessions Court. It has been held by our High Court that the word discharge used at several stages in Criminal Procedure Code may have different meanings. It has been held that so far as the Sessions Court was concerned on the Magistrates finding that there is no sufficient ground to hold that the offence exclusively triable by the Sessions Court had been committed the matter ended and eventually there was a discharge and the Sessions Court could invoke its powers referred to in sec. 437 of the Criminal Procedure Code. In the instant case we are not concerned with such a question. What has happened in the instant case is that at the initial stage the Magistrate found that a charge should be framed for the offence under sec. 323 of the Indian Penal; Code and no charge for the offence under sec. 325 of the Indian Penal Code should be framed as on referring to the police statement of the complainant Ramchandra he found that the fracture caused to Shankerlal might be on account of his fall and not on account of the stick blows given by the appellant. There after the Police Prosecutor gave an application. The doctor was examined and the doctor said that the fracture of the three ribs found was a result of external injury No. 6 which was wheal mark on the chest portion. He therefore amended the charge and the charge was framed under sec. There after the Police Prosecutor gave an application. The doctor was examined and the doctor said that the fracture of the three ribs found was a result of external injury No. 6 which was wheal mark on the chest portion. He therefore amended the charge and the charge was framed under sec. 325 of the Indian Penal Code. ( 2 ) SEC. 227 of the Criminal Procedure Code is material for our purposes. It runs as under :- (1) Any Court may alter or add to any charge at any time before Judgment is pronounced or in the case of trials (by Jury) before the Court of Session or High Court before the verdict of the jury is returned. (2) Every such alteration or addition shall be read and explained to the accused. A mere plain reading of this section indicates that at any stage before the judgment is pronounced Magistrate is empowered to alter or add to any charge. It is a comprehensive section. It not only includes the correction of an error made In framing the charge but also will include the non-framing of a charge. If there is non-framing of a charge such a charge can also be added at any stage before the judgment is pronounced provided there is evidence to support it. If the argument advanced by the learned Advocate Mr. Thakore is accepted and if it is found that correct proposition of law is that if such a charge is not framed at the initial stage and if after recording of evidence It is found that such a graver offence has been committed and the Magistrate is not empowered to frame such a charge the provisions of this sec. 227 of the Criminal Procedure Code will be quite nugatory. I am therefore of opinion that even though the charge sheet was sent for the offences under secs. 323 and 325 of the Indian Penal Code and at the initial stage the charge was framed only for the offence under sec. 323 of the Indian Penal Code the Magistrate had jurisdiction or had power to alter that charge and frame a new charge for the offence under sec. 325 of the Indian Penal Code. 323 and 325 of the Indian Penal Code and at the initial stage the charge was framed only for the offence under sec. 323 of the Indian Penal Code the Magistrate had jurisdiction or had power to alter that charge and frame a new charge for the offence under sec. 325 of the Indian Penal Code. ( 3 ) IN the case of In re Satyanarayana Reddi A. I. R (34) 1947 Madras 174 the Madras High Court had to deal with a similar question:- Yahya Ali J. has made the following pertinent observations :-THE words add to in sec. 227 Criminal Procedure Code do not mean an addition of a few words to the existing charge. They mean addition of a new charge. If what was intended was to empower the Court only to make some corrections or additions to the existing charge the word alter occurring in the section would have met the requirements and it was not necessary to enact the words add to. Redundancy cannot be attributed to the Legislature and it is clear from the sections that follow sec. 227 that what the Legislature intended was that the Court may add a new charge at any time before judgment is pronounced provided that the safeguards Mentioned in sec. 228 were duly observed. The reference to a new charge in secs. 229 and 230 clearly shows that the concept of a new charge is implicit in these wordsin a private complaint charging the accused under secs. 323 325 and 155 Penal Code a Magistrate can therefore add at a later stage new charges under sec 325 and 355 in addition to the charge under sec. 323 Penal Code already framed by him in that case also it was argued as has been done in this case that the act of the Magistrate in framing a charge only under sec. 323 when the complaint alleged three specific offences amounted to a discharge of the petitioner under secs. 325 and 355 and after that discharge was made the Magistrate had no jurisdiction to frame the additional charges. He contended that that would amount to a reviewing of the case for discharge which the Magistrate was not competent to do. 323 when the complaint alleged three specific offences amounted to a discharge of the petitioner under secs. 325 and 355 and after that discharge was made the Magistrate had no jurisdiction to frame the additional charges. He contended that that would amount to a reviewing of the case for discharge which the Magistrate was not competent to do. The machinery provided under the Code of moving higher authorities to set aside the order of discharge it is urged should have been availed of by the complainant if he felt aggrieved. The learned Public Prosecutor points out that even assuming for arguments sake that the framing of the charge at the earlier stage under 323 alone amount to an implied discharge under secs. 325 and 355 penal code it has been held in a number of cases in this Court that the would not preclude a fresh complaint being made in respect of those offences In 29 Madras 126 Emperor v. Chinna Kaliappa and in 55 Madras 622 In re Ponnuswami Goundan two full Bench cases of this Court it was held that in such circumstances the filing of a fresh complaint is not prohibited and that such would be the case even where the order of dismissal of the complaint had not been set aside. It was further held that in view of the powers given to the Magistrate to alter or add to a charge at any stage before the pronouncement of the judgment the order of the Magistrates framing a new charge was quite legal. This decision is a complete answer to the argument advanced by the learned Advocate Mr. Thakore and I am in respectful argument with the proposition of law enunciated in that decision. I therefore hold that the learned Magistrate has rightly found that he could frame this new charge under sec. 325 of the Indian Penal Code. The appellant has not been prejudiced thereby. He was given an opportunity to recall the doctor and Doctor Joshi was recalled and the appellant cross-examined him. Conviction under sec. 323 set aside conviction under sec. 325 confirmed .