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1978 DIGILAW 171 (KAR)

STATE OF KARNATAKA v. GOVINDA NAIKA

1978-06-27

M.S.NESARGI

body1978
( 1 ) THIS revision petition has been registered as per the order dj 12-4-1977 passed by Sri D. B. Lal, J in Crl App No. 255 of 1976. The respondent who was the appellant in Crl App No. 255 of 1976 has been served. ( 2 ) CRL App No. 255 of 1976 arose out of convictions and sentences passed on the respondent for offences, under Secs. 363 and 366 of the IPC by the Sessions Judge, Tumkur, in Sessions Case No. 24 of 1975. While disposing of the said Criminal Appeal, Sri D. B. Lai, J found that offences under Secs. 375 and 376 of the IPC also had been made out and a charge ought to have been framed for those offences. He dismissed the Criminal appeal by the judgment d/12-4-77 and after so doing, passed the order that a Criminal Revision Petition be registered and a notice to the respondent to show cause why a charge should not be framed against the respondent under Sections 375 and 376 IPC be issued. ( 3 ) NOW, the question that arises for consideration is whether after disposing of the Crl App No. 255 of 1976 this Court could have passed such an order in exercise of its revisional power under Sec. 401 of the Crlpc. ( 4 ) IT may be remembered that this Court while dealing with the crl App No. 255 of 1976 noticed that a charge under Sec. 375 read with sec. 376 IPC ought to have been, framed against the respondent, but, the court did not apt at that stage itself. On the other hand, it proceeded ahead with the appeal and disposed of the same by confirming the conviction and sentences passed on the respondent for the offences under Ss. 363 and 366 of the IPC and thereafter directed a, Revision Petition be registered for the aforementioned purpose. Sec. 216 (1) of the Crlpc lays dpwn that any Court may alter or add to any charge at a,ny time before judgment is pronounced. Sub-sec (4) provides for that 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. Sub-sec (4) provides for that 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. Sec. 401 of the Crlpc dealing with the revisional powers of the High Court lays down that the High, Court may, in its discretion, exercise any of the powers conferred, on, a Court of appeal by Secs. 386 389, 39'0 and so on. Sec. 386 (e) reads as follows :" 386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Sec. 377 or Sec. 378, the accused, if he appears the appellate Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) to (d ). . . . . . (e) make any amendment or any consequential or incidental order that may be just or proper. " ( 5 ) THIS provision did occur as Sec. 423 (d) of the Crlpc, 1898. ( 6 ) THE Supreme Court has in Kantilal Chandulal Mehta v. State of maharashtra, AIR. 1970 SC. 359. while dealing with this provision held that a charge can be altered at appellate stage. What had happened in that case was, whilg dealing with certain appeals, the High Court of Bombay found that only one charge against the accused was framed for misappropriation of the moneys under Sec. 406 IPC advanced by the Bank in respect of which the magistrate had, ultimately convicted the appellant on 31st August 1966 and sentenced him to 18 months' rigorous imprisonment and then the High court without pronouncing the judgment in the concerned appeal, issued the following direction : " I direct that the charge as framed by the learned Magistrate be altered and amended in terms of the draft amendment submitted and send the case back for a new trial on this amended charge so as to enable the appellat to have full opportunity to meet this case, till which time this appeal is kept pending. " this direction was challenged in the Supreme Court and the Supreme court held that it was a valid order in view of the provisions of Sec. 423, (1) (d) of the the Crlpc, 1898 and Sec. 535 of the Crlpc, 1898. It may be mentioned here that Sec. 535 of the Crlpc, 1898 is replaced by Sec. 464 of the Code of Criminal Procedure, 1973. ( 7 ) SO, it is clear from what has been laid down in the aforementioned decision that while dealing with an appeal the appellate Court has power to direct alteration or amendment of a charge or addition to a charge. But, while doing so, Sec. 216 of the Crlpc (Sec. 227 of the Crlpc 1898) cannot be ignored. Sec. 216 (1) of the Crlpc, as already pointed out, provides that any Court may alter or add to any change at any time before judgment is pronounced. ( 8 ) THE resultant position in law is that the order passed by t';is court on 12-4-77 directing that a Revision Petition be registered and show cause notice be issued to the respondent as to why a charge under Sec. 375 read with Sec. 376 of the IPC should not be framed against him is beyond the powers of this Court because, the same has been passed after pronouncing the judgment in the Criminal Appeal. That is the distinction between the case on hand and the aforementioned easel decided by the supreme Court. ( 9 ) IN the result, I hold that this revision petition is incompetent and dismiss it. --- *** --- .