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2013 DIGILAW 2324 (RAJ)

Dinesh v. State of Rajasthan

2013-12-19

SANDEEP MEHTA

body2013
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 23.11.2011 passed by the learned Additional Sessions Judge No. 1, Bhilwara in Criminal Revision No. 27/2011, whereby the Revisional Court affirmed the order dated 19.4.2011 passed by the learned Chief Judicial Magistrate, Bhilwara in Criminal Regular Case No. 66/1999 directing framing of additional charge against the petitioner for the offence under Section 4/25 of the Arms Act on the basis of the application filed by the prosecution under Section 216 Cr.P.C. 3. The factual spectrum involved in the instant misc. petition evolves from the registration of an F.I.R. against the petitioner and 8 other accused persons for the offences under Sections 147, 148, 149, 307, 324, 323 and 447 I.P.C. A charge-sheet was filed against the accused persons for these offences and the case was committed to the learned Additional Sessions Judge, Bhilwara. 4. The learned Additional Sessions Judge, Bhilwara discharged all the accused from the offence under Section 307 I.P.C. and the case was toned down and sent for trial to the Court of learned Chief Judicial Magistrate, Bhilwara under Section 228 Cr.P.C., by order dated 26.2.1999. The learned Chief Judicial Magistrate framed charges against the accused on 3.11.2003. One of the accused Mohan was not available on that day on which the charge was read over to him on 18.8.2004. The accused pleaded not guilty and claimed trial. 5. The prosecution took about five years to complete its evidence and ultimately, closed its evidence after examining 19 witnesses in support of its case. 6. On 20.7.2009, the learned Public Prosecutor and learned counsel for the complainant submitted an application under Section 216 Cr.P.C. read with Section 190 Cr.P.C. claiming that the accused Dinesh Sharma and Hira Lal Mali should also be charged for the offence under Section 4/25 of the Arms Act because the weapons recovered from them during investigation amply proved their liability for the said offence. The application filed by the prosecution was allowed by the learned Trial Court by order dated 7.9.2009 and cognizance was taken against the petitioner under Section 4/25 of the Arms Act. 7. The accused challenged the said order by filing revision and the matter was remanded back to the learned Trial Court. The application filed by the prosecution was allowed by the learned Trial Court by order dated 7.9.2009 and cognizance was taken against the petitioner under Section 4/25 of the Arms Act. 7. The accused challenged the said order by filing revision and the matter was remanded back to the learned Trial Court. Ultimately, the learned Trial Court by order dated 19.4.2011 partly accepted the application filed by the prosecution under Section 216 Cr.P.C. Whilst the prayer for framing additional charge against the accused Hira Lal was rejected on the ground that no evidence was brought regarding the dimensions of the weapon recovered from him but at the same time, it was allowed qua the accused petitioner Dinesh. 8. The petitioner challenged the said order in revision which proved unsuccessful. The petitioner has now approached this Court challenging the aforesaid orders by way of the instant misc. petition. 9. Mr. Vineet Jain, learned counsel for the petitioner, vehemently contended that the order passed by the learned Trial Court directing addition of charge under Section 4/25 of the Arms Act against the petitioner after a lapse of more than 13 years from the date of incident, is uncalled for. He urged that the undue delay has been tried to be justified by a lame excuse claiming that the Investigating Officer PW-19 Kanhaiya Lal was examined on 7.7.2008 on which day, the dimensions of weapon became clear. He urged that the recovery memo showing the dimensions of the weapon was available on the record of the case even at the time of filing of the charge-sheet and nothing prevented the learned Trial Court from framing the above mentioned charge against the petitioner at the inception. He contended that the addition of charge against the accused after nearly 13 years of the incident would virtually amount to holding a retrial of the case after such a long period of time. He has relied on the decision rendered by the Hon'ble Supreme Court in the case of Vakil Prasad Singh v. State of Bihar, reported in 2009 Cr.L.R. (SC) 372 in support of his contention and urged that the delay occasioned in addition of charge and putting the accused to retrial after such a long period of time, is violative of right to speedy trial guaranteed to every accused under Article 21 of the Constitution of India. Therefore, he prayed that the impugned orders deserve to be quashed. 10. Per contra, the learned Public Prosecutor and learned counsel for the complainant have vehemently opposed the submissions advanced by the learned counsel for the petitioner. Learned counsel for the complainant submitted that the language of Section 216 Cr.P.C. makes it amply clear that the charge can be altered by the Court at any stage of trial. It was thus submitted that there is no reason to interfere in the well reasoned order passed by the learned Trial Court which has also been affirmed in revision. 11. Heard and considered the arguments advanced at the Bar and perused the orders impugned as well as record. 12. Upon going through the order-sheets of the learned Trial Court, which have been made part of the record, it is evident that the delay between the period when the case was sent down by the learned Additional Sessions Judge after discharging the accused from the offence under Section 307 I.P.C. was purely and totally caused by the accused. The learned Additional Sessions Judge by the order dated 26.2.1999 exercising the powers under Section 228 Cr.P.C. toned down the case and directed the learned Chief Judicial Magistrate, Bhilwara to frame charges against the accused for the offences under Sections 147, 148, 149, 324, 323 and 447 I.P.C. 13. Thus, after the said order was passed, there was no scope or occasion for the accused to raise any contention regarding the charges which were to be framed against them. The question of charges to be framed had already been decided by the learned Additional Sessions Judge on 26.2.1999. Despite that, the learned counsel for the accused delayed the proceedings in the learned Trial Court for almost four years by seeking adjournments for advancing the charge arguments and ultimately, the charge against some of the accused could be framed on 3.11.2003. On that day also, one of the accused namely, Mohan Lal was not available before the Court and ultimately, the charge was read over to him on 18.8.2004. 14. Thus, the prosecution cannot be held guilty for the delay which was occasioned for that period. The lapse of this period of excess of five years was purely because of the dilatory tactics adopted by the accused. 14. Thus, the prosecution cannot be held guilty for the delay which was occasioned for that period. The lapse of this period of excess of five years was purely because of the dilatory tactics adopted by the accused. The subsequent period of 534 years of course appears to have been consumed in recording the prosecution evidence but the delay is not so great that the accused can get any benefit from the same. Where a major part of delay was due to the conduct of the accused themselves and partly, it was occasioned by the prosecution, then the proceedings of the Trial Court cannot be challenged on the ground of delay. The accused cannot take benefit or advantage of their own dilatory tactics. 15. The charge framed against the accused for the offence under Section 4/25 of the Arms Act has not been assailed on merits. The necessary ingredients of the offence are disclosed against the accused. Merely because the prosecution omitted to mention the said offence in the charge-sheet or did not propose the charge before the Sessions Judge, the accused cannot take advantage of the said fact because the necessary ingredients of the said offence are undisputedly made out from the material available on record. The accused will have the opportunity to rebut the charge at the trial. 16. As a result of aforesaid discussion, this Court is of the opinion that the impugned orders cannot be said to be illegal or amounting to an abuse of the process of the Court or as having been passed after an undue delay so as to interfere in the same by exercising the inherent powers under Section 482 Cr.P.C.The upshot of the above discussion is that the instant misc. petition, being devoid of any merit, is hereby dismissed.Stay petition also stands dismissed.Petition dismissed. *******