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2015 DIGILAW 524 (UTT)

Kamal Waldiya v. State of Uttarakhand

2015-11-04

ALOK SINGH

body2015
JUDGMENT : Alok Singh, J. 1. Accused/revisionists have preferred present revision assailing the order dated 03.10.2015 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 19 of 2012 (State Vs. Kamal Waldiya and Another) under Section 498A, 304B, 306 IPC. Initially, in the charge, date of incident was mentioned as 13.09.2012 and evidence was led by the prosecution. Thereafter, it was brought to the notice of the court that date of incident was wrongly mentioned as 13.09.2012 instead of 19.12.2011 in the charge. Having acquired the knowledge about wrong mentioning of date of incident in the charge, learned Sessions Judge was pleased to pass impugned order dated 03.10.2015 for correcting the date of incident in the charges as 19.12.2011 in place of 13.09.2012. 2. Feeling aggrieved, accused/revisionists have preferred present revision. 3. I have heard Ms. Pushpa Joshi, Sr. Advocate assisted by Mr. Amit Kapri, Advocate for the revisionists and Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand. 4. Ms. Pushpa Joshi, learned Sr. Advocate for the revisionists has vehemently argued that of course, charges can be altered or amended under Section 216 CrPC but this is not a case of alteration or amendment of the charges. Rather this is case of correction or amendment of date of incident in the charge, which is not permissible under Section 216 CrPC or under Section 362 CrPC. She further contends that from the perusal of the impugned order, it would reveal that learned Sessions Judge passed the impugned order by invoking Section 362 CrPC. She further contends that charges were read over to the accused for the alleged incident of 13.09.2012 and having heard the charges, accused/ revisionists, herein, claimed trial and thereafter, evidence was led and cross examination was made in the light of charges levelled against the accused for the alleged incident of 13.09.2012, therefore, otherwise also, date of incident ought not to have been changed in the manner learned Sessions Judge did. 5. Section 362 CrPC confers power on the court to alter/correct the clerical or arithmetical error in the judgment, after judgment is signed. 6. Sections 215, 216 and 217 of the Code of Criminal Procedure read as under: “215. Effect of errors. 5. Section 362 CrPC confers power on the court to alter/correct the clerical or arithmetical error in the judgment, after judgment is signed. 6. Sections 215, 216 and 217 of the Code of Criminal Procedure read as under: “215. Effect of errors. - 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 those 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. 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 maybe 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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. 217. Recall of witnesses when charge altered. 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 for defeating the ends of justice; (b) also to call any further witness whom the Court may think to be material.” 7. A combine reading of Sections 215, 216 and 217 would make it clear that no error either about the offence or the particulars in the charge, shall vitiate the trial if parties knew all the correct facts about the offence and particulars of offence. It further demonstrates that court at any stage may alter or amend the charge. If charge is altered or amended, court may recall the witnesses, on the request of either of the parties for examination on altered or amended or added charge. 8. Undisputedly, incident is of 19.12.2011. As per FIR too, date of incident is 19.12.2011. Accused were arrested for the incident of 19.12.2011 and were remanded to the judicial custody for the incident of 19.12.2011. Trial was committed to the court of Session for the incident of 19.12.2011, therefore, accused were knowing that they were apprehended and asked to face trial for the incident of 19.12.2011. Therefore, wrong mentioning of date of incident in charge as 13.09.2012 instead of 19.12.2011 shall not vitiate the trial in view of Section 215 CrPC. Moreover, in the present case, having acquired the knowledge about typographical mistake in the charge, learned Sessions Judge has corrected the date of incident in the charge while exercising powers under Section 216 CrPC, which cannot be said to be without jurisdiction. 9. Consequently, revision fails and is hereby dismissed in limine. CRMA No. 1890 of 2015 also stands disposed of accordingly.