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1999 DIGILAW 526 (PAT)

Ram Chaudhary v. State Of Bihar

1999-06-29

S.K.CHATTOPADHYAYA

body1999
Judgment 1. Being aggrieved by the order dated 2.9.1998 passed by the learned Addl. Chief Judicial Magistrate, Bagaha, the petitioner has moved this Court in this quashing application. 2. The facts of the case are that on First Information Report being filed a case under Sections 341, 323 read with Section 34 of the Indian Penal Code was initially registered. The Court received First Information Report on 16.6.1992 and the Investigating Officer of the case made a prayer for inserting Sections 307 and 325 of the Indian Penal Code in the case and the said prayer was allowed. After investigation the Investigation Officer found, prima facie, a case under Sections 341 and 307/34 of the Penal Code against the accused-persons and, as such, in Column 7 of the charge-sheet inserted those sections. However, in second paragraph of the charge-sheet instead of aforesaid five sections of the Penal Code only three Sections, namely 341, 323 and 34 were noted. Thus, cognizance was taken only under Sections 341, 323 and 34 of the Penal Cod on 18.12.1992 and the case was transferred to the Court of the Judicial Magistrate for trial. 3. Later on the case was transferred to the Judicial Magistrate, 1st Class where substance of accusation was explained on 6.9.1997 and prosecution witnesses 1, 2 and 3 were examined and cross-examined. The witnesses were discharged and the case of the prosecution was closed. On 28.8.1998 the statement of the accused-persons was recorded under Section 313 of the Code of Criminal Procedure. 4. However, on 29.8.1998 a petition was filed under Section 410 of the Code of Criminal Procedure for withdrawal of the case from the Judicial Magistrate, 1st Class and to pass appropriate order as the charge-sheet and the case-diary have been submitted by the police under Sections 341, 323, 325, 307 and 34 of the Penal Code. On this petition being filed the learned Court below perused the charge-sheet and the case-diary and found that the case was triable by the Court of Sessions because offence under Section 307 along with other Sections of the Penal Code were mentioned in the charge-sheet. Thus, he modified his order dated 18.8.1992 and further took cognizance under the aforesaid sections, namely, Sections 341, 323, 325, 307 and 34 of the Penal Code. Thus, he modified his order dated 18.8.1992 and further took cognizance under the aforesaid sections, namely, Sections 341, 323, 325, 307 and 34 of the Penal Code. He was of the view that the earlier procedure adopted by the Magistrate was without jurisdiction as the case was exclusively triable by the Court of Sessions. 5. Learned counsel for the petitioner submits that the Magistrate was not empowered to pass such order as it amounts to review its earlier order taking cognizance dated 18.8.1992. Secondly, the Magistrate could not have re-called or review its own order and this was not the stage when the Magistrate should go to the stage of investigation. In this connection, he has referred to the decision in the case of Ajit Kumar Mishra V/s. State of Bihar and others, 1998 (3) BLJ 607. On this learned counsel for the Opposite Party No. 2 contends that in view of Section 216 of the Code of Criminal Procedure, charge can be amended or altered at any stage till the judgment is pronounced. According to him, even the Appellate Court is empowered to alter or amend the charge if the records so reveal. 6. Section 216(1) of the Code of Criminal Procedure contemplates that any Court may alter or add to any charge at any time before judgment is pronounced. Similarly, sub-section (2) of Section 216 mandates that every such alteration or addition shall be read and explained to the accused. Combined reading of these two sub-sections will indicate that they are comprehensive including not only correction of an error in framing the charge but also non-framing of a charge. Both sub-sections apply to all Courts and have reference to cases where after disclosure of facts in evidence or the plea of the accused, or by reason of other circumstances, that is, aggravation of offence, it becomes necessary to alter or add a charge. It is true that the power to alter the charge should be exercised with caution. 7. In the facts and circumstances of the case as noticed above, after presenting the First Information Report before the Court the Investigation Officer made a prayer even before filing of the charge- sheet to insert Sections 307 and 325 of the Penal Code in the First Information Report and the said prayer was allowed. 7. In the facts and circumstances of the case as noticed above, after presenting the First Information Report before the Court the Investigation Officer made a prayer even before filing of the charge- sheet to insert Sections 307 and 325 of the Penal Code in the First Information Report and the said prayer was allowed. After investigation though the Police found a prima facie case under Sections 307, 341, 323 and 325 read with 34 of the Penal Code but by inadvertence, while submitting the charge-sheet, he omitted offence under Sections 325 and 307 of the Penal Code in column second. 8. There is no denial of the fact that in column 7 of the charge-sheet the Investigating Officer has mentioned Sections 325 and 307 along with other Sections but by inadvertence and clerical error did not insert these two particular Sections in second paragraph of the charge-sheet. However, when a petition was filed under Section 410 of the Code by the Investigation Officer the learned Addl. Chief Judicial Magistrate perused the charge-sheet and the case-diary and found that a sessions triable case was made out by the prosecution. Thus, the Court modified its earlier order taking cognizance and took cognizance under Sections 341, 323, 325, 307 and 34 of the Penal Code. 9. From the facts discussed above, it will be seen that immediately after filing of the First Information Report, before the Court the Investigating Officer realised mistakes and took permission of the Court to add Sections 325 and 307 in the First Information Report. That prayer was allowed. Even after investigation when charge-sheet was filed these two sections were mentioned in column 7 but either by mistake or carelessness in column 2 of the charge-sheet these two sections were not inserted. 10. On a plain reading of Section 216 of the Code, it is clear that at any stage before the judgment is pronounced, the Magistrate is empowered to alter or add any charge. It is comprehensive section which not only includes the correction of an error in framing the charge but also 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. 11. It is comprehensive section which not only includes the correction of an error in framing the charge but also 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. 11. If the argument of the learned counsel for the petitioner is accepted to being correct that the proposition of law is that if such charge is not framed at initial stage and if after recording of evidence, it is found that such graver offence has been committed and the Magistrate is not empowered to frame such charge, in my view, the provisions of the Sections of the Code will be nugatory. Even Section 215 of the Code postulates that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. 12. In the instant case the petitioner has not been misled because admittedly in column 7 of the charge-sheet Sections 325 and 307 were inserted though by inadvertence the same was not shown in paragraph 2 of the charge-sheet. Thus, there is an apparent error on the part of the Magistrate also who had taken cognizance under other sections mentioned in paragraph 2 of the charge-sheet by not noticing column 7 of the charge-sheet. 13. In these circumstances, in my view, when the matter was brought to the notice of the learned Additional Chief Judicial Magistrate, he was justified, after perusal of the case-diary and the charge-sheet to observe that the case was exclusively triable by the Court of Session and by further taking cognizance under the aforesaid two sections including other sections. 14. The facts and circumstances in the case of Ajit Kumar Mishra (supra) on which reliance has been placed by the learned counsel for the petitioner, in my view, are quite distinguishable. 14. The facts and circumstances in the case of Ajit Kumar Mishra (supra) on which reliance has been placed by the learned counsel for the petitioner, in my view, are quite distinguishable. The facts in that case was that the petitioner filed a petition before the Magistrate for adding Section 307 of the Penal Code on the ground that though charge-sheet in that case was submitted against the accused-persons under Sections 147, 148, 323, 324, 341, 32, 379 and 307 of the Penal Code but inadvertently the cognizance was not taken for the offence under Section 307 of the Penal Code. This Court found, however, that in the year 1998 charge-sheet was submitted and thereafter cognizance was taken and charge was framed on 2.4.1992 and at that time, though both parties were present, the informant did not raise any objection in framing of charge under other sections except Section 307 of the Penal Code. This Court found that the petitioner-informant agreed to framing of charge against the accused-persons under Sections 147, 148, 323, 324, 342, 325 and 379 of the Penal Code. 15. Second contention raised by the petitioner that some foul was played by the accused-persons in connivance of the Courts staff and the charge-sheet submitted in the case was manoeuvred showing that no charge-sheet has been submitted under Section 307 of the Code was also negatived by this Court on the ground that there was no material whatsoever to show that the informant-petitioner raised any objection for framing the charge against the accused-persons on that score. Thus, the facts of the reported case are entirely different from those of the instant case. 16. Having considered the facts of the case I am of the opinion that the order of the learned Magistrate dated 2.9.1998 does not call for any interference and this application, having no merit, is dismissed.