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2005 DIGILAW 64 (KER)

Pola Sreedharan v. State of Kerala

2005-02-01

M.SASIDHARAN NAMBIAR

body2005
Judgment :- Accused in C.C.809/99 on the file of Judicial First Class Magistrate, Taliparamba are the revision petitioners. Prosecution case against the petitioners was that on 10-6-1997 at about 1-30 p.m. petitioners were proceeding in autorikshaw, KL 13B 6492 from Taliparamba side and first petitioner was driving the autorikshaw and they were carrying a licenced gun as well as an unauthorised country gun when they were arrested and guns were seized by the Police. After obtaining the sanction from the District Collector, they were charge sheeted before the learned Magistrate. The learned Magistrate framed charge for the offences under Section 12 read with Section 25 (IB) (g) of Arms Act, hereinafter referred to as the Act. They pleaded not guilty. Prosecution examined 9 witnesses and marked six exhibits. Petitioners were questioned under Section 313 of Cr.P.C. and arguments were heard. The learned Magistrate then found that the petitioners were not properly charged for the offences in view of the amendment to the Arms Act. Thereafter charge was altered. After the alteration of the charge, petitioners 1 and 2 were charged for the offence punishable under Section 25 (IB) (g) read with section 12 of Act and third petitioner for the offence under Section 25 (3) (i) read with Section 5(2) of Act. Petitioners are challenging the order of the learned Magistrate altering the charge. 2. Revision petitioners would contend that the evidence adduced will not prove an offence alleged in the charge sheet submitted by the Police and sanction was accorded by the District Collector only for those offences and though petitioners were originally charged for the offence under section 25 (1) (g), there is no such offence and offence under Section 25 (1) (c) was omitted by Act 42 of 1988 with effect from 27-5-1988 and in such circumstances the learned Magistrate should not have altered the charge without obtaining prior sanction from the District Magistrate and therefore order dated 5-10-2004 passed by the learned Magistrate altering the charge has to be set aside. 3. Heard Advocate Sri Maniprasad appearing for the petitioners and the learned Public Prosecutor. 4. Adv. 3. Heard Advocate Sri Maniprasad appearing for the petitioners and the learned Public Prosecutor. 4. Adv. Sri Maniprasad relying on the decision of this court in Prabhakaran v. Excise Circle Inspector 1992 (2) KLT 860 Edward v. Victor Immanuel 2002 (1) KLJ 101 and the decision of the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat AIR 2004 SC 2078 would argue that the order altering the charge is revisable under Section 401 of Cr.P.C. and the court below could not have altered the charge without a finding that it is necessary in the interest of justice and therefore the order altering the charge is unsustainable. The learned counsel also argued that except altering the charge, the learned Magistrate has not passed any order finding that on the evidence there is a necessity to alter the charge and alteration of the charge without a speaking order is unsustainable. The learned Public Prosecutor submitted that on the materials placed and the evidence on record the learned Magistrate is competent to alter the charge at any stage of the case before pronouncing the judgment and therefore the revision is only to be dismissed. 5. Section 216 of the Code of Criminal Procedure enables a Court to alter or add to any charge at any time before a judgment is pronounced. Sub-section (2) mandate that such alteration shall be read and explained to the accused. Sub-section (3) provides that if alteration or addition to a charge is such that proceeding immediately with the trial is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case, after such alteration proceed with the trial as if the altered or added charge had been the original charge. Subsection (4) provides that if the alteration is such that proceeding immediately with the trial is likely to prejudice the accused or the prosecutor, the court may either direct a new trial or adjourn the trial to such period as may be necessary. Subsection (5) provides that if the offence stated in the altered or added charge is one for the prosecution for which the previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained unless sanction has been already obtained for prosecution on the same facts as those on which the altered or added charge is founded. 6. 6. The three petitioners were charge sheeted by the Police on the allegation that they were found travelling in an autorikshaw driven by the 1st petitioner with a licenced gun and an unauthonsed country gun without any valid licence when they were arrested by the Police. They were charge sheeted by the Police after obtaining sanction by the competent authority for the offence under Section 12 read with Section 25 (IB) (g) of the Act and the third petitioner for the offence under Section 25 (3) (i) read with Section 5 (2) of the Act. After the prosecution evidence was closed and the petitioners were questioned under Section 313 of Cr. P. C. and the prosecution and petitioners were heard. The learned Magistrate found that the penal section shown in the charge sheet as well as the charge framed by the court was not correct. Evidently as pointed out by the learned counsel appearing for the petitioners there was no section as 25 (IB) (g) in the Act. The learned Magistrate on 16-7-2004 passed the following orders in the proceedings paper. "All accused present. Penal Section shown in final report and charge appears to be incorrect in view of the amendment of Arms Act. Hence suo motu reopened. Call on 3-8-2004." On 3-8-2004 on the request of the petitioners the case was posted to 17-8-2004 and again on their request it was posted to 4-9-2004 and then to 9-9-2004. On 9-9-2004 the petitioners were heard and it was posted to 16-9-2004. The learned Magistrate passed the following order on that day: Heard. Charge is to be altered. For alteration of charge post-on 5-10-2004. On 5-10-2004 all the petitioners were present and the learned Magistrate passed the order as follows: Charge framed under Section 25 (IB) (g) read with Section 12 of Arms Act against accused 1 and 2 and for the offence under Section 25 (iii) (i) read with Section 5 (2) of Arms Act against the third petitioner read over and explained to the accused. They pleaded not guilty. For steps if any 26-10-2004. Petitioners challenge the alteration of the charge by producing the copy of the altered charge by on 9-11-2004. As per order in Crl.M.Appl. 13244/04 a learned Single Judge of this court ordered interim stay of further proceedings of the case. They pleaded not guilty. For steps if any 26-10-2004. Petitioners challenge the alteration of the charge by producing the copy of the altered charge by on 9-11-2004. As per order in Crl.M.Appl. 13244/04 a learned Single Judge of this court ordered interim stay of further proceedings of the case. The argument of the learned counsel appearing for the petitioners is that there is no speaking order and the charge could be altered only during trial. The trial court after closing the evidence and questioning the accused, could alter the charge only if on the evidence and documents is satisfied that any addition or alteration of charge is necessary and in the absence of a finding to that effect, the alteration of the charge is illegal and is to be set aside. 7. The question whether the framing of a charge is an interlocutory order or not and if so whether revisable or not was settled by the Apex Court in V.C. Sukla v. State AIR 1980 SC 962. In spite of the decision, there was again some controversy divergent positions were taken by different Benches on the said decision. That was settled by a Division Bench of this Court in Prabhakaran v. Excise Circle Inspector 1992 (2) KLT 860. Analyzing the legal position, the Division Bench settled the position as follows: "Framing of charge may or may not amount to interlocutory order as it depends upon facts of the case, the statute under which proceedings have been initiated, as also the nature of objections raised against it etc. If the objection or objections raised against the order framing charge are such that upholding such objection/objections would result in termination of the proceedings, then framing of charge cannot be regarded as merely interlocutory order for the purpose of revisional jurisdiction under S.397 (2) of the Code." Therefore the test to be applied is whether the objection or objections raised against the order framing charge are such that upholding the objection or objections would result in termination of the proceedings. If the answer is in the affirmative, the order is revisable and if not it is not revisable. The position cannot be different when the revision is challenged against the alteration of charge. Even in such a case the test to be applied is whether upholding the objections would result in the termination of proceedings. If the answer is in the affirmative, the order is revisable and if not it is not revisable. The position cannot be different when the revision is challenged against the alteration of charge. Even in such a case the test to be applied is whether upholding the objections would result in the termination of proceedings. Once the objections raised by the petitioners are upheld it will result in termination of the proceedings before the learned Magistrate, the order is revisable. If not, it can only be held that revision is not maintainable. 8. The argument of the learned counsel appearing for the petitioners is that the charge was altered without any speaking order and therefore it is illegal. The question is whether a speaking order is warranted when the charge is altered. It is now settled position that when the court is framing a charge, there is no necessity to pass a speaking order showing the reason for framing of charges. Framing of charge by itself indicate that the Magistrate or the Sessions Judge has applied the mind and considered the relevant aspects and decided that prima facie there is a case to be proceeded with on the materials furnished by the prosecution and therefore a charge is framed. If that be so, it cannot be said that when the charge is altered, the alteration of the charge is illegal for the reason that there is no speaking order justifying the reason for the alteration. Sub-section (1) of Section 216 enables any court to alter or add to any charge at any time before judgment is pronounced. Learned counsel relied on the decision of a learned Single Judge of this court in Edward v. Victor Immanuel 2002 (1) KLK 101 where the learned Single Judge held as follows: Application for alteration of the charge should be made immediately after the charge been read out and explained by Magistrate. Learned counsel argued that the learned Magistrate has altered the charge after closing of the evidence and hearing the prosecution and defence and as it was not altered immediately after the framing of the charge, it is bad. The learned Single Judge was considering the order of the Sessions Judge in setting aside an order passed by the Magistrate on a petition filed by the complainant to alter the charge in Edward's case. The learned Single Judge was considering the order of the Sessions Judge in setting aside an order passed by the Magistrate on a petition filed by the complainant to alter the charge in Edward's case. In that case the accused was prosecuted on a complaint alleging that he committed offence under Section 138 of the Negotiable Instruments Act. While the trial was in progress and after the Bank Manager was examined, complainant moved a petition under Section 216 (1) of Cr.P.C. to alter the charge to one under Section 420 of I.P.C. which was allowed by the Magistrate and was set aside by the Sessions Judge. The learned Single Judge found that there was no material either in the complaint or evidence to frame a charge under Section 420 of I.P.C. and also observed relying on the commentary of Code of Criminal Procedure by Sahoni that application for alteration of the charge should be made immediately after framing of the charge. That observation does not mean that a charge cannot be altered after evidence was recorded. Sub-section (1) of Section 216 does not limit the power of the court. It enables the court to alter or add to any charge at any time before judgment is pronounced. The learned Magistrate on the evidence and materials placed before him, even questioned the accused and then found that the offences charged were the proper offences and therefore altered the charge. Exercising of the right of the learned Magistrate under sub-section (1) of Section 216 Cr.P.C. cannot be limited to a stage before recording the evidence or even closing of the evidence. The power could be exercised at any time before the judgment is pronounced. When on the evidence and records, it is found that interest of justice warrants the charge to be altered the Magistrate is competent to alter the charge at any time before the judgment is pronounced. 9. The argument of the learned counsel relying on the decision of the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat (supra) is that to alter a charge a finding that on the materials and evidence that alteration of the charge is necessary and if it is not there the alteration of charge is illegal. 9. The argument of the learned counsel relying on the decision of the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat (supra) is that to alter a charge a finding that on the materials and evidence that alteration of the charge is necessary and if it is not there the alteration of charge is illegal. As stated earlier, when the framing of charge does not wanant a speaking order disclosing the reason for framing charge, it is not mandatory that the learned Magistrate should pass a speaking order. On the evidence and documents if the Magistrate is satisfied that alteration of charge is necessary he is empowered to alter the charge. The Apex Court in that case relied on an earlier decision in Kantilal Chandulal Mehta v. State of Maharashtra AIR 1979 SC 359 where it was held that the Code gives ample power to the Courts to alter or amend a charge whether by the trial court or by the Appellate Court 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 a full opportunity of meeting it and putting forward any defence open to him on, the, charge finally preferred against him. Section 217 enables the party to recall, if necessary, of witnesses when the, charge is altered. The Apex Court therefore held: "Therefore, 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." Though learned counsel also relied on the decision of the Apex Court in Sohan Lal v. State of Rajasthan AIR 1990 SC 2158 the Court was considering the question whether an accused who has been discharged under the relevant provisions of the Code could be charged again by invoking the power under Section 216 of the Code on an application by the prosecutor. That is not a relevant aspect in this case. That is not a relevant aspect in this case. Though sub-section 216 does not provide for a speaking order, to show that the Magistrate has considered it necessary to alter the charge because of the documents and evidence placed before him, it is always advisable to pass on order indicating that the Magistrate has applied his mind before directing the alteration of charge. The crucial question is whether the proceedings of the court below establishes that the Magistrate has applied his mind before altering the charge. 10. The proceeding paper reveals sufficient indications to satisfy that the learned Magistrate altered charge only after applying his mind and that too after affording the prosecution and defence to address arguments and objections. The order in the proceeding paper dated 16-7-2004 shows that learned Magistrate found that accused were not charged for the proper offences. The learned Magistrate suo motu reopened the case and posted to 3-8-2004. On the request of the petitioners the case was adjourned thrice and was heard on 9-9-2004. After hearing it partly Magistrate posted the case to 16-9-2004. On that day the learned Magistrate heard the prosecution and defence and decided to alter the charge and posted the case to 5-10-2004 on which day the charge was altered. Therefore though there is no speaking order, it is clear from the proceeding paper that the learned Magistrate has applied his mind and was satisfied that the charge already framed was not for the proper offence and therefore altered the charge. The learned Magistrate has also read over and explained the altered charge to the petitioner and afforded them opportunity to recall the witnesses or to examine fresh witnesses and posted the case for steps to 26-10-2004. The learned Magistrate has therefore correctly acted as provided under Section 216 of Cr.P.C. The absence of specific reason for alteration of charge is not a ground to interfere with the order of the Magistrate. Even though learned counsel appearing for the petitioners argued that in the absence of the sanction for prosecution of the petitioners for the altered charge, no prosecution is maintainable, sub-section (5) of Section 216 specifically provides that if the offence stated in the altered charge is one prosecution for which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained. Therefore on the question of sanction also petitioners are not entitled to challenge the alteration of the charge made by the learned Magistrate. The question whether petitioners could be convicted for the offences under the altered charge is not to, be considered in the revision. Criminal Revision fails and is dismissed.