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2012 DIGILAW 1704 (PAT)

State Of Bihar v. Md. Shahabuddin

2012-12-18

BIRENDRA PRASAD VERMA

body2012
C.A.V. ORDER Whether a petition filed under Section 216 of the Code of Criminal procedure, 1973 ( for short “Cr.P.C.”) seeking addition or alteration of charge against the accused can be rejected summarily merely on the ground of delay, without considering the prayer on merit by examining and scrutinizing the materials available on the record, is the central issue requiring determination by this Court in the present proceeding. 2. Material facts relevant for deciding the present proceeding are not in dispute. One Kalawati Devi lodged a criminal case on 16.8.2004 with allegations that her two sons, namely, Girish Kumar alias Niku and Satish Kumar alias Sonu have been assaulted by the accused persons and both of them have been abducted in order to murder them. It was also alleged that shops situate near the bus stand were put on fire. On the basis of the aforesaid Fardbeyan, Siwan Mofassil P.S.Case No. 131 of 2004 dated 16.8.2004 under Sections 341,323,380,435 and 364/34 of the Indian Penal Code was instituted by the police and investigation was taken up. Indisputably, on close of investigation, charge sheet was submitted against the accused opposite party nos.1 to 4 for offences under Sections 341,323,380,436,364 and 120-B of the Indian penal Code. After cognizance being taken, the case was committed to the court of Sessions for trial of the accused persons, giving rise to Sessions Trial No. 158 of 2010. 3. Suffice is to state that charges were framed against the accused opposite parties on 4.6.2010. So far accused-opposite party nos.1 to 4 are concerned, they have been charged under Sections 364-A and 120-B of the Indian Penal Code. However, Opposite party nos. 2 to 4 have further been charged for offences under Sections 341,323,364, 364-A, 436 and 380 of the Indian Penal Code. Admittedly, recording of evidence of P.Ws. commenced on 1.7.2010 and altogether ten prosecution witnesses were examined till 26.8.2011. After close of the prosecution evidence, and complying with the mandatory requirements under Cr.P.C., arguments commenced for disposal of the aforesaid Sessions Trial No. 158 of 2010. While the arguments were still continuing, on 9.8.2012 a petition under Section 216 Cr.P.C. was filed on behalf of the prosecution with a prayer for addition of charges under Sections 302, 201 read with Section 120-B of the Indian Penal Code against the accused-opposite parties. While the arguments were still continuing, on 9.8.2012 a petition under Section 216 Cr.P.C. was filed on behalf of the prosecution with a prayer for addition of charges under Sections 302, 201 read with Section 120-B of the Indian Penal Code against the accused-opposite parties. It is the case of the prosecution that in view of evidence of P.Ws., particularly on the basis of evidence of P.Ws.1,4, 5 and 6, there are materials showing commission of crime of murder of both the victims by the accused persons, as a result of which amendment of charge is required, and, to be precise, there are materials for addition of charges under Sections 302,201 read with Section 120-B of the Indian Penal Code against the accused-opposite parties. It is the specific case of the prosecution that during the course of trial materials have surfaced that both the abducted persons were killed by the accused persons in conspiracy to each other and their dead bodies have been made traceless, therefore, they are required to be tried for the said charges also. The aforesaid petition dated 9.8.2012 filed on behalf of the prosecution under Section 216 Cr.P.C. for addition of charges has finally been rejected by the learned Additional Sessions Judge-I-cum-Special Judge, Siwan, by his impugned order dated 17.8.2012 passed in Sessions Trial No. 158 of 2010. 4. The State of Bihar through the District Magistrate, Siwan, being aggrieved by the aforesaid order dated 17.8.2012 passed by the learned trial court, has preferred the present revision application under Section 397 and 401 Cr.P.C., questioning the correctness, validity and propriety of the impugned order. 5. It would be relevant to mention here that opposite party nos. 1 to 4 have suo motu appeared through their respective counsels and have resisted the prayer made on behalf of the State of Bihar in the present proceeding. It would further be relevant to mention here that on 6.11.2012 when this matter was heard for some time, learned counsel appearing on behalf of the petitioner as also the opposite parties agreed that the lower court records are not required to be called for, for disposal of the present proceeding, as the depositions of all the witnesses have already been brought on the record by the petitioner. In the aforesaid circumstances, the matter was finally heard at great length and arguments were concluded from both sides on 26.11.2012, and order was reserved. 6. learned counsel appearing on behalf of the petitioner has assailed the validity and correctness of the impugned order passed by the learned trial court, and has submitted that the learned Additional Sessions Judge-I-cum-Special Judge, Siwan has illegally rejected the petition filed on behalf of the prosecution for addition of charges on the ground of delay, and on misconceived notion of law has refused to exercise his powers under Section 216 Cr.PC. for addition of charges. According to him, the learned trial court has not at all considered the prayer on merit by examining and scrutinizing the materials available on the record and in a mechanical manner has rejected the prayer with an observation that the prayer for addition of charges shall be considered at the time of pronouncement of judgment in the aforesaid Sessions trial. It is contended that the learned trial court has committed jurisdictional error in not considering the petition filed on behalf of the prosecution on merit by examining the materials available on the record. It is also pleaded, in the background of the case, that there was no delay on the part of the prosecution in approaching the learned trial court for amendment of charges against the accused opposite parties and for addition of some more charges against them. In the submissions of the learned counsel, the impugned order passed by the learned trial court is not sustainable in eye of law. It is finally pleaded that in view of the materials available on the record, this Court may direct the learned trial court to add charges under Sections 302,201 read with section 120-B of the Indian Penal Code against the accused opposite parties. 7. In support of the above submissions, and in defence of the maintainability of the present revision application before this Court against the impugned order dated 17.8.2012 passed by the learned trial court, learned counsel appearing on behalf of the petitioner has placed reliance on the following judgments:- (i) Kantilal Chandulal Mehta Vs. State of Maharashtra and another [ AIR 1970 SC 359 ] (ii) Amar Nath & others Vs. State of Haryana & others [ AIR 1977 SC 2185 ] (iii) Madhu Limaye Vs. State of Maharashtra and another [ AIR 1970 SC 359 ] (ii) Amar Nath & others Vs. State of Haryana & others [ AIR 1977 SC 2185 ] (iii) Madhu Limaye Vs. State of Maharashtra [ AIR 1978 SC 47 ] (iv) Hasanbhai Valibbhai Qureshi Vs. State of Gujarat & others [ (2004) 5 SCC 347 = AIR 2004 SC 2078 ] and (v) Nand Kumar Singh Vs. State of Bihar [ 2007 (4) PLJR 83 ] 8. Learned Senior counsel appearing on behalf of the opposite party no.1 as also the leaned counsel appearing on behalf of the opposite party nos. 2 to 4 are unanimous in raising strong objections with respect to maintainability of the present revision application before this Court. According to them, the impugned order passed by the learned trial court is fully justified and does not require any interference by this Court at this stage. It is contended that the impugned order passed by the learned trial court is interlocutory in nature and, therefore, in view of bar created under Section 397 (2) Cr.P.C., the present revision application is not maintainable. It was next urged that the prosecution filed the petition under Section 216 Cr.P.C. after much delay when the arguments was going on for final disposal of Sessions Trial on behalf of the parties. Delay, being a relevant and crucial factor, prayer for addition of charges in terms of Section 216 Cr.P.C. has rightly been rejected. Alternatively, it was also submitted that the present matter is pre-mature in view of the observation of the learned trial court that the charge can be amended at a later stage when the judgment would be pronounced. In support of their above submissions, learned counsels appearing on behalf of the opposite parties have placed their reliance on the following judgments:- (i) Emperor Vs. Mohanlal Aditram [ AIR 1928 Bombay 475 (2) ] (ii) Harihar Chakravarty Vs. State of West Bengal [ AIR 1954 SC 266 ] (iii) Amar Nath and others Vs. State of Haryana and another [ (1977) 4 SCC 137 ] (iv) V.C.Shukla Vs. State through CBI [(1980) Supplementary SCC 92 = AIR 1980 SC 962 ] (v) Munna Vs. State of UP. [ 1996 Cri. L.J. 65 [Allahabad High Court] (vi) State of Maharashtra Vs. Ramdas Shankar Kurlekar [1999 CRI.LJ 196 ( Bombay High Court] (vii) Nazim Khan & Another Vs. State through CBI [(1980) Supplementary SCC 92 = AIR 1980 SC 962 ] (v) Munna Vs. State of UP. [ 1996 Cri. L.J. 65 [Allahabad High Court] (vi) State of Maharashtra Vs. Ramdas Shankar Kurlekar [1999 CRI.LJ 196 ( Bombay High Court] (vii) Nazim Khan & Another Vs. State [ 2001 (1) JCC (Delhi) 265] (viii) State of Maharashtra Vs. Salman Salim Khan & Another [ (2004) 1 SCC 525 ] 9. After having heard the parties, and on perusal of the impugned order as also other materials available on the record, this Court finds that the prayer for addition of charges made on behalf of the prosecution has been rejected primarily on the ground of delay in approaching the learned trial court. While passing the impugned order, the learned trial court has not considered the prayer made on behalf of the prosecution on merit. The materials cited by the prosecution and evidence of witnesses, referred to in the petition filed on behalf of the prosecution, have not at all been discussed and considered in the impugned order. The learned trial court has observed that since the petition on behalf of the prosecution for amendment/addition of charges has been filed belatedly, therefore, the same shall be considered at the time of final decision of the Sessions Trial. The issue raised on behalf of the opposite parties that the impugned order is interlocutory in nature, and, therefore, the revision application would not be maintainable in view of the bar created under Section 397(2) Cr.P.C. also goes to the root of the matter. Hence, this Court proposes to decide each and every material and relevant issue separately under the following headings. (a) Whether delay is the relevant factor for exercising powers under Section 216 Cr.P.C. 10. Chapter XVII of the Cr.P.C. deals with the charge in a criminal trial against the accused persons. Section 211 Cr.P.C. provides that what shall be the contents of charges and how charges shall be framed against the accused. Section 216 Cr.P.C. provides for alteration/amendment in the charge. It also provides that charges can be added at any stage of the trial of an accused by the court. It does not prescribe any time limit either for filing any petition by the prosecution or for exercising such power by the trial court. Section 216 Cr.P.C. provides for alteration/amendment in the charge. It also provides that charges can be added at any stage of the trial of an accused by the court. It does not prescribe any time limit either for filing any petition by the prosecution or for exercising such power by the trial court. In order to appreciate the issues raised in the present proceeding, it would be relevant to reproduce Section 216 Cr.P.C. which reads as follows:- “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 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 the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 11. On plain examination of section 216 Cr.P.C., it is apparent that charge can be altered or added by the court at any time before the pronouncement of the judgment. The Legislature in its wisdom has not prescribed any time limit either for alteration or addition of charge. The legislative intent is clear and unambiguous that the court cannot refuse to alter or add to any charge on the ground of delay. However, after any alteration or addition, charge is required to be read and explained to the accused. Thereafter, the other procedures prescribed under Section 216 and 217 Cr.P.C. are required to be necessarily followed. The legislative intent is clear and unambiguous that the court cannot refuse to alter or add to any charge on the ground of delay. However, after any alteration or addition, charge is required to be read and explained to the accused. Thereafter, the other procedures prescribed under Section 216 and 217 Cr.P.C. are required to be necessarily followed. The issue under consideration is no longer a res integra. In the case of Kantilal Chandulal Mehta (Supra) the Hon’ble Apex Court in paragraph 3 has held as follows:- “In our view the Criminal Procedure 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 that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him on the charges finally preferred against him.” 12.. Recently, the Hon’ble Apex Court in the case of Hasanbhai Valibhai Qureshi( Supra) reiterated the aforesaid principles in paragraph 10 of the judgment, which reads as follows:- “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.” 13. If Section 216 Cr.P.C. is read in the background of judicial pronouncements of the Hon’ble Apex Court, as referred to above, then it is apparent that powers under Section 216 Cr.P.C. can be exercised at any stage by the courts before pronouncement of the judgment. It is true that in the case at hands, evidence of P.W. 10 was last recorded on 26.8.2011 and a petition for addition of charge was filed on 9.8.2012, but on the ground of delay itself the learned trial court could not have rejected the prayer made on behalf of the prosecution for addition of charges against the accused opposite parties. The observation of the learned trial court in the impugned order that prayer for addition of charges shall be considered at the time of final pronouncement of the judgment is beyond the scope and ambit of Section 216 Cr.P.C. If once judgment is pronounced, then there is no question of amendment/addition of charges. Further after pronouncement of judgment, the learned trial court becomes functuous officio and cannot pass any order either for alteration or addition of charge. This Court is also of the opinion that once a prayer for amendment/addition of charge is allowed, then the court is required to follow the procedures prescribed under Section 216 as also 217 Cr.P.C. and only thereafter, the trial can be concluded. That being the legal position, the learned trial court should have considered the prayer on merit by examining and scrutinizing the materials/evidence of P.Ws. available on the record and only thereafter, he could have disposed of the petition filed on behalf of the prosecution. Admittedly, that has not been done in the present case. Consequently, the impugned order passed by the learned trial court rejecting the prayer for addition of charge on the ground of delay, without considering the prayer on merit, cannot be sustained in the eye of law. (b) Whether the impugned order is interlocutory in nature. 14. Learned counsels appearing on behalf of the opposite parties have strenuously argued that the impugned order passed by the learned trial court refusing to exercise its powers under Section 216 Cr.P.C. for addition of charges is interlocutory in nature. Therefore, according to them, in view of bar created under section 397 (2) Cr.P.C. the present revision application is not maintainable. It is true that under the mandate of Section 397 (2) Cr.P.C. a revision application against an interlocutory order passed in any appeal, enquiry, trial or other proceeding is not maintainable. But, the question is whether the impugned order passed by the learned trial court refusing to exercise its powers under Section 216 Cr.P.C. can be termed as interlocutory in nature. 15. Identical issue came up for consideration before the Hon’ble Apex Court in the case of Amar Nath Vs. State of Haryana (Supra). The question as to the interpretation, scope, ambit and connotation of the word “interlocutory order” as appearing in sub-section 2 of Section 397 Cr.P.C. was under consideration before the Hon’ble Aapex Court. 15. Identical issue came up for consideration before the Hon’ble Apex Court in the case of Amar Nath Vs. State of Haryana (Supra). The question as to the interpretation, scope, ambit and connotation of the word “interlocutory order” as appearing in sub-section 2 of Section 397 Cr.P.C. was under consideration before the Hon’ble Aapex Court. S. Murtaza Fazal Ali, J. speaking for the Hon’ble Supreme Court has answered the issue in paragraph 6 of the aforesaid judgment and relevant portion of which is reproduced herein below:- “Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” ( emphasis of mine) 16. The ratio laid down by the Hon’ble Apex Court in the case of Amar Nath ( Supra), so far as the scheme and scope of Section 397 (2) Cr.P.C. with respect to an interlocutory order is concerned, it was re-affirmed and reiterated in the case of Madhu Limaye (Supra) by the Hon’ble Supreme Court. Our own High Court in the Case of Nand Kumar Singh Vs. State of Bihar (Supra), while considering the maintainability of the revision application against an order refusing to discharge in view of bar created under Section 397 (2) Cr.P.C., has held in paragraph 5 of the judgment as follows:- “The Stamp Reporter proceeded on a wrong assumption that what is not final is interlocutory. It is well settled that the expression interlocutory order in Section 397 of the Code of Criminal Procedure is to be liberally construed. It is well settled that the expression interlocutory order in Section 397 of the Code of Criminal Procedure is to be liberally construed. In my opinion, an order deciding the right of the party substantially is not an interlocutory order, although it may not decide the case finally”. 17. On the basis of the principles laid down by the Hon’ble Apex Court as also by our own High Court, referred to above, this Court is of the considered opinion that the impugned order passed by the learned trial court refusing to exercise its powers under Section 216 Cr.P.C. for addition of charges against the accused opposite parties cannot be termed to be interlocutory in nature. It is true that even if the prayer made on behalf of the prosecution would have been allowed, the entire criminal proceeding would not have come to an end, yet by the impugned order prayer made by the prosecution for addition of substantial and grave charges against the accused opposite parties has been refused to be decided on merit. If the prayer for amendment would have been allowed, then the procedures prescribed under Sections 216 and 217 Cr.P.C were required to be followed. That being the legal position, the impugned order passed by the learned trial court cannot be said to be interlocutory in nature, as it has decided, though wrongly, the substantial right of the parties. Hence, the objection raised on behalf of the opposite parties about the maintainability of the present revision application is misconceived, untenable, and has to be rejected. It is, accordingly, held that the present revision application is maintainable. (c) Whether charges can be added by the order of this Court. 18. Learned counsel appearing on behalf of the petitioner submitted that there are sufficient materials available on the record, which may justify addition of the proposed charges against the accused opposite parties. It was pleaded that depositions of all the material witnesses are available on the record. Therefore, according to him, this Court may examine their evidence and issue an appropriate direction to the learned trial court for adding the charges under sections 302,201 and 120-B of the Indian Penal Code against the accused opposite parties. 19. It was pleaded that depositions of all the material witnesses are available on the record. Therefore, according to him, this Court may examine their evidence and issue an appropriate direction to the learned trial court for adding the charges under sections 302,201 and 120-B of the Indian Penal Code against the accused opposite parties. 19. Learned counsel appearing on behalf of the opposite parties have submitted that issue is wide open before the learned trial court and, therefore, this Court, while exercising its revisional jurisdiction, may not issue any specific direction for addition of a particular charge against the accused opposite parties. It was contended that this issue should necessarily be left within the domain of the learned trial court. In support of their above contention, the learned counsel appearing on behalf of the opposite parties have placed reliance on the judgment of the Hon’ble Apex Court in the Case of State of Maharashtra Vs. Salman Salim Khan (Supra). The Hon’ble Apex Court in paragraph 4 of the aforesaid judgment has held that there could be alteration of charge at any stage of the proceeding depending upon the evidence adduced in the case, but this should be necessarily left to the discretion and wisdom of the learned trial court and should not be normally interfered with by the superior courts. Relevant portion of paragraph 4 of the aforesaid judgment is reproduced herein below:- “Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise, as has happened in this case, proceedings get protracted by the intervention of the superior courts.” 20. This Court is of the considered opinion that while exercising revisional jurisdiction, the court should normally refrain from reappraising or re-appreciating the evidence/materials available on the record for coming to a different conclusion than that of the learned trial court. Sufficiency or otherwise of the materials for addition of charges against the accused persons is required to be necessarily decided first by the learned trial court and not by the revisional court. Sufficiency or otherwise of the materials for addition of charges against the accused persons is required to be necessarily decided first by the learned trial court and not by the revisional court. This Court finds that in the present case, while passing the impugned order, the learned trial court has not at all discussed or considered the evidence/materials available on the record, as claimed by the prosecution, for coming to a conclusion about the sufficiency or otherwise of the materials for addition of charges against the accused opposite parties. Therefore, it may not be prudent for this Court to issue any specific direction at this stage to the trial court for addition of charges against the accused opposite parties particularly in the background that the learned trial court has not applied its judicial mind to the facts of the case, yet, it rejected the prayer made on behalf of the prosecution merely on the ground of delay in approaching the court, which has already been held by this Court in earlier part of this order to be not sustainable in the eye of law. However, this Court is of the opinion that once a prayer was made on behalf of the prosecution for addition of charges against the accused opposite parties, the learned trial court ought to have applied its judicial mind to the facts of the case and ought to have considered the evidence of material witnesses, referred to by the prosecution, for coming to a conclusion as to whether there are sufficient materials available on the record or not for addition of the charges against the accused opposite parties. But, admittedly, that has not been done in the present case, which makes the impugned order vulnerable. Result 21. After having answered the relevant issues formulated in the present order, this Court is of the opinion that the matter requires reconsideration by the learned trial court once again. 22. In the result, the impugned order dated 17.8.2012 passed in Sessions Trial No. 158 of 2010 by the learned Additional Sessions Judge-I-cum-Special Judge, Siwan, is hereby set aside and the matter is remitted back to the learned trial court for consideration of the petition filed by the prosecution on merit. 22. In the result, the impugned order dated 17.8.2012 passed in Sessions Trial No. 158 of 2010 by the learned Additional Sessions Judge-I-cum-Special Judge, Siwan, is hereby set aside and the matter is remitted back to the learned trial court for consideration of the petition filed by the prosecution on merit. The learned trial court shall examine and scrutinize the evidence of witnesses produced on behalf of the prosecution and only thereafter shall come to a conclusion about the sufficiency or otherwise of the materials for addition of charges against the accused-opposite parties. He shall be obliged to pass a reasoned and speaking order after giving opportunity of hearing to all concerned. The learned trial court shall make all endeavours to pass a fresh order in accordance with law, keeping in mind the observations and directions made above, within a maximum period of three months from the date of receipt/production of a copy of this order. 23. The application stands finally disposed of with the observations and directions made above. It is clarified that any observation made in the present order by this Court is only for the purpose of disposal of the present proceeding, and shall not in any way adversely affect or prejudice the case of either party in the Sessions Trial.