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Allahabad High Court · body

2009 DIGILAW 3200 (ALL)

VIJAI PANDEY v. STATE OF U. P.

2009-10-06

VIJAY KUMAR VERMA

body2009
JUDGMENT Hon’ble Vijay Kumar Verma, J.—By means of this revision under Section 397 of the Code of Criminal Procedure (in short ‘the Cr.P.C.’), dated 19.5.2004, passed by Spl. Judge (E.C. Act), Jaunpur, in S.T. No. 462 of 1999 (State v. Vijay Pandey and others), under Sections 147, 148, 149, 323, 325, 304, 504, 506, IPC has been challenged. 2. By the impugned order, the learned Court below has allowed the application 45-B moved on behalf of complainant to frame alternate charge under Sections 302 and 307, IPC. 3. The facts leading to the filing of this revision, in brief, are that an FIR was lodged on 2.6.1998 by Rajesh Kumar (O.P. No. 2 herein) at P.S. Pawara, District Jaunpur, where a case at crime No. 82 of 1998, under Sections 147, 148, 149, 323, 504, 506, 304, IPC was registered against Vijay Pandey, Akhilesh @ Lala, Vimlesh, Subhash, Chintamani, Sankatha, Shatrughan and Lakshmi Kant. The allegations made in the FIR, in brief, are that the accused persons having lathi, danda and hockey came on the door of the house of the complainant on 2.6.1998, at about 5.00 p.m. and caused marpeet, thereby causing injuries to the father of the complainant, due to which he died in the hospital. Injuries are said to have been caused to the complainant, his brother Rakesh and mother Smt. Ladawati also. After investigation, charge-sheet was submitted under aforesaid sections. On the case being committed to the Court of session for trial, S.T. No. 462 of 1999 was registered, in which charges under Sections 147, 148, 323/149, 325/149, 304/149, 504 and 506, IPC were framed against the accused persons on 7.11.2000. Prior to leading any evidence, an application was moved on behalf of complainant that alternate charge under Sections 302 and 307, IPC be framed against the accused persons. The Court below vide impugned order has allowed that application and order to frame additional charge under Sections 302/149 and 307/149, IPC in the alternative has been passed. Hence this revision. 4. I have heard arguments of Sri M.S. Khan, Advocate, appearing for the revisionists, Sri V.K. Mishra, counsel for the O.P. No. 2 and AGA for the State. 5. The Court below vide impugned order has allowed that application and order to frame additional charge under Sections 302/149 and 307/149, IPC in the alternative has been passed. Hence this revision. 4. I have heard arguments of Sri M.S. Khan, Advocate, appearing for the revisionists, Sri V.K. Mishra, counsel for the O.P. No. 2 and AGA for the State. 5. The main submission made by learned counsel for the revisionists was that without taking any evidence the Court below could not frame additional charge under Section 302/307 read with Section 149, IPC and hence the impugned order being illegal, deserves to be quashed. For this submission, reliance has been placed on Ishwarchand Amichand Govadia v. State of Maharashtra and another, 2007 (1) All JIC 37 and Munna Lal Agrawal v. State of U.P. and others, 2002 CBC 354. 6. In response, it was submitted by learned counsel for the complainant and AGA that charge can be altered or added at any stage before pronouncing the judgment and hence interference by this Court in the impugned order would not be justified, as the said order does not suffer from any illegality or jurisdictional error. 7. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the entire material on record. As stated herein-above, on the basis of the material available in the case diary, the Court below had framed charge under Sections 147, 148, 323/149, 325/149, 304/149, 504, 506, IPC, vide order dated 7.11.2000 passed in S.T. No. 462 of 1999 (State v. Vijay Pandey and others). The record shows that without leading any evidence by the prosecution in support of the charges framed against the accused persons, an application was moved on 14.10.2003 on behalf of the prosecution to frame alternate charges under Sections 302 and 307, IPC. On the basis of that application, the impugned order has been passed to frame additional charges under Sections 302/149 and 307/149 in the alternative without any additional evidence or material. Therefore, in view of the observations made by this Court in the case of Munna Lal Agrawal v. State of U.P. (supra) the impugned order cannot be said to be justified. Therefore, in view of the observations made by this Court in the case of Munna Lal Agrawal v. State of U.P. (supra) the impugned order cannot be said to be justified. The following observations made in para 5 are worth-mentioning : “Regarding Sections 216 and 323 together it appears that Magistrate is empowered to alter or add any charge at any stage of the case or may commit the case to the Court of Sessions before the judgment is pronounced. However, it does not mean that the charge can be altered or added or the case can be committed without any additional evidence or without any additional circumstance. Once the charge is framed, in my opinion there must be some additional evidence of additional circumstance to alter or add the charge or to order that the case may be committed to the Court of Sessions. The additional circumstance, for example may be that there may be clerical mistake, accidental omission or mistake apparent on the face of the record in framing of the charge. If it is so the charge can be altered or added under Section 216, Cr.P.C. and the case may also be committed under Section 323, Cr.P.C.” 8. In the case of Ishwarchand Amichand Govadia v. State of Maharashtra (supra), charge under Section 304-B, IPC was added without examination of doctor. The charge was held to be unjustified by the Hon’ble Apex Court. Therefore, in my opinion, in present case also, after framing charges against the accused persons, the Court below was not justified to frame additional charges under Sections 302/149 and 307/149, without taking any evidence. 9. Consequently, the revision is allowed and impugned order dated 19.5.2004 is set aside. However, the Court below is at liberty to alter or add charge after taking evidence of doctors. 10. The trial Court concerned is directed to conclude the trial of the accused persons within a period of six months applying the provisions of Section 309, Cr.P.C. and avoiding unnecessary adjournments. In case the accused persons do not co-operate and cause delay in trial, then their bail may be cancelled and after sending them to jail, sincere efforts will be made to conclude the trial within aforesaid period. 11. In case the accused persons do not co-operate and cause delay in trial, then their bail may be cancelled and after sending them to jail, sincere efforts will be made to conclude the trial within aforesaid period. 11. SSP Jaunpur also is directed to depute special messenger to procure the attendance of witnesses after obtaining their summons from the Court concerned and it must be ensured that all the witnesses are produced for evidence in S.T. No. 462 of 1999 without causing any delay. 12. The Office is directed to send a copy of this order within a week to the trial Court concerned and SSP Jaunpur for necessary action. ————