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2007 DIGILAW 287 (ORI)

P. Chinaya v. State of Orissa

2007-04-25

M.M.DAS

body2007
ORDER 25.4.2007 — Heard Mr. Sarangi, learned counsel for the petitioner and Mr. Das, learned counsel for the State. The petitioner happens to be a witness in C.T.Case No. 42 of 2005 pending before the learned Addl. Sessions Judge, Malkangiri. On 10.4.2007, he was examined as P.W.5 on behalf of the prosecu¬tion. From the certified copy of the evidence produced by the learned counsel for the petitioner, it appears that as the P.P. was absent, the learned Court below put questions to the peti¬tioner under Section 165 of the Evidence Act. While recording the answers given by the petitioner who was being examined as P.W.5, finding that he did not support the case of the prosecution, the learned Court below, in the said deposition recorded as follows : “Since it appears from the record that this P. Chineya is indulging in falsehood and avoiding material facts, his involvement in the offence is suspected and this may be taken up by the learned P.P. under Section 216, Cr.P.C., if required adding the name of this person as an accused.” The said witness was cross-examined by the defence but the prosecution chose not to declare him hostile by seeking permis¬sion under Section 154 of the Evidence Act. For appreciation of the contentions raised by the learned counsel for the petitioner. Section 216 of the Code of Criminal Procedure is quoted herein below : “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 proceed¬ing 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. (4) If the alteration or addition is such that proceed¬ing 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 sanc¬tion is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” As submitted by Mr. Sarangi, a bare reading of the aforesaid provision of the Code of Criminal Procedure goes to show that by the said provision, the Court is empowered to alter or add to any charge already framed against the accused in a criminal case, at any time before the judgment is pronounced, subject to the conditions enumerated in Sub-sections (2) to (5) of the said section. It is further revealed from the records that in spite of the above observations of the trial Court, recorded in the deposition of the writ petitioner as P.W.5, the prosecution did not file any application to alter the charge. But, nevertheless, by order dated 10.4.2007, the learned Court below suo motu discussing the allegations made by the prosecution, adding the name of the petitioner as an accused to the said case, framed charge against him for alleged commission of offences under Sections 109/302 IPC and directed to remand the accused-petitioner to judicial custody till the next date. On the next day, i.e. on 11.4.2007, an application was filed by the petitioner for releasing him on bail. The said application being rejected, the petitioner has filed the present application for grant of bail. Since I find that the order dated 10.4.2007 passed by the learned Court below adding the petitioner as one of the accused and framing charge against him, though he came to the Court for giving his deposition as a prosecution witness, and remanding him to jail custody purportedly exercising power under Section 216, Cr.P.C. is an order wholly without jurisdiction and contrary to law. In the facts of the case, I am of the view that this is a fit case where this Court should exercise its inherent power under Section 482 Cr.P.C. and quash said order dated 10.4.2007. I, accordingly, quash the said order dated 10.4.2007 by which the petitioner was added as an accused and after framing charge against him, he was remanded to custody. I, therefore, direct that the petitioner be deleted from the array of accused and be set at liberty forthwith. It would be, however, open for the prosecution to move an appropriate application before the learned Court below for impleading the petitioner as an accused in the case, if materials are available for making such a prayer. The BLAPL is accordingly disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.