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Allahabad High Court · body

2010 DIGILAW 2412 (ALL)

Shiv Shanker v. State of U. P. & Anr.

2010-08-09

VEDPAL

body2010
Vedpal, J.:- This petition under Section 482 Cr.P.C. has been filed by Shiv Shankar for setting aside the order dated 15.7.2010, passed by Additional Sessions Judge/Special Judge (E.C.Act) in S.T. No. 183 of 1999 State Vs. Shiv Kumar and others contained in Annexure no.1 to this petition whereby the application 221 Kha, moved by accused (petitioner herein) for recalling the prosecution witnesses after amendment of charge was rejected. It was further prayed that trial court be also directed to summon the witnesses in view of the provisions of Section 217 Cr.P.C. 2. On the request of learned counsel for the petitioner as well as learned A.G.A. For the State, this petition was finally heard at the stage of admission and notice for opposite party no.2 was dispensed with. 3. It reveals from the perusal of the record that the petitioner along with four others, namely Sonu, Akre, Sukhdeo and Amar Singh is facing trial in S.T.No. 183 of 1999 State Vs. Shiv Kumar and others before the Court below. On 12 July 2010 the case was fixed for arguments. When argument commenced, it came to the notice that there is an error in the 4th head of the charge which ought to have been S. 302/149 instead of S. 302/34 I.P.C.The learned trial court after exercising its power under Section 216 Cr.P.C. amended the 4th head of the charge of Section 302/34 I.P.C. to Section 302/149 I.P.C. and considering it a clerical error, posted the case to 15 July 2010 for further arguments. On 15 July 2010 an application 221 Kha was moved by accused/petitioner to recall the witnesses of fact. The said application was rejected by learned trial court by the impugned order Dated 15-07-2010. Feeling aggrieved with this order the petitioner has approached this court. 4. Assailing the legality and propriety of the impugned order it has been submitted by learned counsel for the petitioner that Section 217 Cr.P.C. provides that after alteration of the charge an opportunity shall be given to the prosecution as well as to the defence to recall and re-examine the witnesses, but the court below did not do so and when the petitioner moved an application for recalling the witnesses, the same was rejected on the ground that the purpose of moving application is to delay the proceeding and defeat the ends of justice. That when the defect in the charge was pointed out during the argument by the defence, the charge was altered to fill up the lacuna. That if the witnesses are not recalled for cross-examination, it will prejudice the accused in his defence and as such the impugned order passed by the court below is liable to be set aside. Learned counsel for the petitioner relied on Nanak Chand Vs. State of Punjab AIR 1955 S.C. 274 . 5. Learned AGA supported the impugned order, passed by the learned court below by contending that only clerical error was rectified by the Court below and in fact it does not amount any material alteration in the charge as the first head of the charge was for the offence punishable under Section 147 I.P.C., second head of the charge was for the offence punishable under Section 148 I.P.C. third head of the charge was for the offence punishable under Section 307/149 I.P.C., but inadvertently fourth head of the charge was wrongly transcribed as 302/34 I.P.C. instead of 302/149 I.P.C., which was corrected on 12.7.2010. Thus, no new charge was framed and in the circumstances there was no need to recall any witness for their re-examination or cross examination and the application was moved by the petitioner just to delay the proceeding as the case was at the stage of final arguments of the parties and the accused in no way was going to be prejudiced by not recalling witnesses and the petition has no force and is liable to be dismissed in limine. 6. I have carefully considered the respective submissions made by the parties. It is necessary to go through the different provisions of charge given in Sections, 216 and 217 of the Code of Criminal Procedure which read as under: S.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. (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 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. (5) If the offence stated in the altered or added charge is one for prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction 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. S.217 Recall of witnesses when charge altered - Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed- (a) to recall or re-summon and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or defeating the ends of justice; (b) also to call any further witness whom the Court may think to be material. 7. It reveals from the perusal of the above provisions of Sections 216 and 217 of the Code of Criminal Procedure that the Court has power to amend the charge by alternation or addition to a charge at any stage. Section 216(3) of the Code provides that if the court is of the opinion that by alteration or addition to a charge is not likely to prejudice the accused in his defence, he may proceed with the trial as if the altered or added charge had been the original charge. Section 216(3) of the Code provides that if the court is of the opinion that by alteration or addition to a charge is not likely to prejudice the accused in his defence, he may proceed with the trial as if the altered or added charge had been the original charge. The learned Court below has clearly stated in its order dated 12.7.2010 Annexure No.2 that accused are not likely to prejudice by the said amendment of the charge and the case shall proceed under Section 216(3) as if the addition to the charge had been in the original charge. This order dated 12.7.2010 has not been challenged. Furthermore, section 215 of the Code of Criminal Procedure provides 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 its 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. Section 217 provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the learned Court below has specifically held that merely a clerical error was corrected. The charge in heads 1,2 and 3 was already there of forming of an unlawful assembly to commit the alleged offence in prosecution of the common object of the said unlawful assembly and it was merely clerical error that in the fourth head of the charge, instead of Section 302/149 Section 302/34 was written which was corrected. Thus, accused in no way was misled or prejudiced in his defence and application has been moved to delay the proceeding. It reveals that in the present case charge was framed on 18.10.2002. Evidence of the prosecution witnesses was recorded and all witnesses were cross-examined at length by the accused persons. Thus, accused in no way was misled or prejudiced in his defence and application has been moved to delay the proceeding. It reveals that in the present case charge was framed on 18.10.2002. Evidence of the prosecution witnesses was recorded and all witnesses were cross-examined at length by the accused persons. Their statement under Section 313 Cr.P.C. was rerecorded and opportunity to adduce the defence was also accorded to the accused person and the case was fixed for final argument but up to 12.7.2010 the accused person did not raise any objection that charge framed in the fourth head is defective and it must be clearly stated by amendment or alteration so that they may not be mislead or prejudiced in their defence. It goes to show that it was very well within the knowledge of the accused persons that in fact they were facing trial to the charge of forming an unlawful assembly and to commit offence in prosecution of the common object of the said assembly and that is why the other accused persons have not joined in this petition. Further section 465 Cr.P.C. also provides that in determining whether any error in any proceeding under the Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage of proceedings. No objection was raised by any of the accused during the course when evidence was recorded and statement of accused persons under Section 313 Cr.P.C. were recorded. It clearly goes to show that by this error the accused/petitioner had not misled in his defence and there was no failure of justice and in fact, failure of justice had not occasioned by the error in the fourth head of the charge. It is also pertinent to mention that like all procedural laws ,the Code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them by mere technicalities. The error in the charge is a curable one as is clear from the provisions of Sections 464 and 465 of the Code of Criminal Procedure. It is also pertinent to mention that like all procedural laws ,the Code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them by mere technicalities. The error in the charge is a curable one as is clear from the provisions of Sections 464 and 465 of the Code of Criminal Procedure. Had there been, not a charge of forming unlawful assembly to commit not under Sections 147,148 I.P.C. and in attempting to commit murder in prosecution of the common object of the unlawful assembly, the error in the fourth head of the charge would have been material but when charge of forming unlawful assembly to commit offence in prosecution of the common object of unlawful assembly is already there, the error in the fourth head of the charge is of no consequence and is merely a technicality in stating 4th head of the charge. 8. In regard to the legal position and scope of Sections 34 and 149 I.P.C. there were some uncertainties after the decision of Nanak Chand case (supra) which has been cited by learned counsel for the petitioner but the uncertainties and doubts had already been cleared by a Constitutional Bench of Hon'ble the Supreme Court in Wille Slaney Vs. State of M.P. AIR 1956 SC 116 wherein Hon'ble the Supreme Court observed in para 86 as under:- 86" Section 34,114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." 9. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant." 9. Thus, in view of the above, it is clear that case of prejudice will have to be made out by the accused persons which does not exist in the present case because the evidence was adduced regarding formation of unlawful assembly and to commit the alleged offence in the prosecution of the common object of the said assembly. Furthermore, objection in regard to the defect in the fourth head of the charge was not raised by any of the accused since 18-10-2002 when the charge was initially framed. The above ruling cited by learned counsel for the petitioner in view of the facts and circumstances of the present case is of also of no help to the petitioner. The submission made by learned counsel for the petitioner are devoid of merit. 10. In the lights of the facts stated, the discussion made and reasons given above, I do not find any infirmity in the order impugned in this petition, which may warrant interference by this Court. The petition is devoid of any merit and deserves dismissal. 11. The petition is accordingly dismissed in limine. Petition Dismissed.