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2015 DIGILAW 511 (JHR)

Md. Firoj @ Md. Firoz v. State of Jharkhand

2015-04-22

PRASHANT KUMAR

body2015
ORDER This application has been filed for quashing the order dated 29.05.2014 passed by learned S.D.J.M., Sadar, Chaibasa in G.R. No. 206 of 2006, whereby and whereunder he altered the charge by adding Section 326 of the I.P.C. in the main charge and had further ordered that recall of any witness for further examination and cross-examination not required because that will delay the proceeding. 2. It appears that earlier the charge was framed by learned Chief Judicial Magistrate, Chaibasa only under Sections 498A/34 of the I.P.C. vide order dated 25.07.2006. However, it appears that informant had filed an application for addition of charge under Section 307 of the I.P.C. and Section 3/4 of the Dowry Prohibition Act, which was rejected by the Chief Judicial Magistrate vide order dated 13.06.2008. It then appears that against the said order informant has filed a criminal revision in this Court vide Criminal Revision No. 656 of 2008 which was disposed of vide order dated 14.07.2009 and in the said order the following observation made: “14.7.09 …... In my opinion, since 40% burnt injury was there, it may be the case for offence u/s 325 or 326 of the Indian Penal Code. After examination of other witnesses, the trial court will again consider the desirability of changing the charges under other Section 325 of the IPC, on an application”. 3. However, it appears from the impugned order that even after the observation made by this Court in the aforesaid revision, the charge has not been altered and the trial court proceeded with the trial and ultimately the case of prosecution has been closed and thereafter accused persons examined and their statements recorded under Section 313 of the Cr.P.C. It appears that before the start of the defence, the court below, on the request of prosecution, altered the charge on 29.05.2014 and Section 326 of the I.P.C. was added. The court below, after going through the evidence, has found that the parties had already examined and cross-examined all the witnesses on the point of injury sustained by the victim, therefore, the learned court below came to the conclusion that no prejudice will be caused to the accused or the prosecution if the charge will be altered. The court below, after going through the evidence, has found that the parties had already examined and cross-examined all the witnesses on the point of injury sustained by the victim, therefore, the learned court below came to the conclusion that no prejudice will be caused to the accused or the prosecution if the charge will be altered. The learned court below also concluded that recall of the witnesses for examination or cross-examination is not desirable in the interest of justice as the same will further delay the proceeding. 4. It is submitted by Sri Yogesh Modi, learned counsel for the petitioners that in the instant case, the learned court below had committed gross illegality in altering the charge at the fag end of the trial. He further submits that the learned court below had committed another illegality by not giving any opportunity to the accused persons to cross-examine the witnesses after alteration of the charge. Accordingly, Sri Modi submits that the impugned order cannot be sustained. 5. Sri S.K. Pandey-II, learned Additional P.P. opposed the aforesaid prayer. 6. Having heard the submissions, I have gone through the record of the case. It appears that the said alteration has been made by the learned court below after considering the entire evidences available on the record and also taking into account the observation of this Court in Criminal Revision No. 656 of 2008. So far the contention of Sri Modi that alteration of charge cannot be made at fag end in a trial has of no substance, because Section 216 of the Cr.P.C. gave power to the court to alter or add any charge at any stage of the trial before pronouncement of judgment. Thus, it is open for the learned court below to alter or add charge even after recording the statements of the accused persons under Section 313 of the Cr.P.C. Thus, at this score, I find no illegality in the order of the court below. 7. Now, coming to the next submission raised by the learned counsel for the petitioners that petitioners have not been given any opportunity to cross-examine the witnesses after addition of the charge, in my view, the aforesaid contention has already been answered by the learned court below in the impugned order. 7. Now, coming to the next submission raised by the learned counsel for the petitioners that petitioners have not been given any opportunity to cross-examine the witnesses after addition of the charge, in my view, the aforesaid contention has already been answered by the learned court below in the impugned order. In impugned order the learned court below had made following observation: “I am of further considered view that this addition to charge is such that proceeding further with the trial is not likely to prejudice the accused or the prosecution as all the P.Ws specially the informant (PW-1) and the doctor (P.W. 3) have been examined and cross-examined at length by prosecution and defence respectively on the point of injury and even on the new charge to be added to. The scars of these injuries have even been shown in the court by the victim (P.W. 1) and an observation has also been made to this effect in her evidence. The injury report has already been proved and marked as exhibit (Ext.2). Thus, nothing more remains to be done in regard to the new charge to be added to. The materials on the basis whereof the new charge has to be added to, were already on the record from before and both the parties were fully aware of the same and have conducted their case accordingly. Therefore, in my considered opinion, this Court should proceed further with the trial as if the charge to be added to, has been the original charge in view of Section 216 (3) Cr.P.C.” 8. Thus, from the aforesaid observation, it is clear that both the parties had examined and cross-examined the witnesses on the point of injuries sustained by the victim in course of occurrence. Section 217 of the Cr.P.C. gives power to the court that if it found that the prosecutor or the accused desires to recall or re-examine a witness for the purpose of vexation or delay or for defeating the ends of justice, it can refuse to recall any witness. Section 217 of the Cr.P.C. gives power to the court that if it found that the prosecutor or the accused desires to recall or re-examine a witness for the purpose of vexation or delay or for defeating the ends of justice, it can refuse to recall any witness. In the instant case, the court below has given specific reason that since both the parties had already examined and cross-examined the witnesses on the point of injury sustained by the victim, which was grievous in nature and caused by burning and no prejudice will be caused to the parties if the charge will be added, it refuse to recall the witnesses because the same will cause further delay in disposal of the case. Thus, I find that the impugned order by which the learned court below refuse to recall the witnesses is in consonance with the provisions contained under Section 217 (a) of the Cr.P.C. 9. In view of the discussions made above, I find no merit in this application. Accordingly, the same is dismissed.