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2015 DIGILAW 740 (JHR)

Muni Lal Beldar @ Munilal v. State of Jharkhand

2015-07-02

RAVI NATH VERMA

body2015
ORDER : The petitioner calls in question the legality of the order dated 16.09.2013 passed by Judicial Magistrate, Dhanbad in C.P. Case No.46 of 2009 whereby and whereunder the learned court below suo-moto amended the charge from Section 403 I.P.C. to 420 I.P.C. at the fag end of trial when the case was fixed for judgment. 2. In nutshell, the case of the complainant is that both the parties are step brothers and they are equally entitled to a share in their fathers property and for this an agreement was executed between this petitioner-accused and the complainant and prior to filing of this complaint petition, one case being P.G. Appeal No.5 of 2007 was instituted and one Title Suit for apportionment of the amount, which was received by his late father from his employer was filed but when this complainant went to enquire from the authority, came to know that the accused-petitioner by deceiving him has already received the entire amount of their father. Hence, the complaint under Section 406, 420,120(B) and 323 of Indian Penal Code. 3. It appears from the record that after examination of the complainant on solemn affirmation, the other inquiry witnesses were examined and being prima facie satisfied the court took cognizance of the offence under Section 403 of the Indian Penal code. After appearance of the petitioner, the substance of accusation was explained to him under Section 403 of the I.P.C. and witnesses were examined. After closure of the prosecution evidence, a petition under Section 216 of the Code of Criminal Procedure (in short ‘the Code’) was filed by the complainant for alteration of charge from 403 I.P.C. to 420 I.P.C. on the ground that witnesses examined in court have fully substantiated the complainants allegation of cheating. A copy of the said petition was given to the other side. The court after hearing the petition filed under Section 216 of the Code rejected the prayer of the complainant by order dated 18.10.2012 on the ground that there is no sufficient material on record to alter the charge already framed under Section 403 I.P.C. Thereafter, the statement of this petitioner under Section 313 of the Code was recorded and after completion of argument, the case was fixed for judgment on 16.09.2013 but on 16.09.2013 the court below recorded the following order:- “The case today is fixed for judgment. Both side filed attendance. Both side filed attendance. During the careful perusal of the record it came to knowledge of court that instead of Section 403 of I.P.C. Section 420 of I.P.C. is made out against the accused. So in the interest of justice charge is needed to be altered under Section 216 Cr.P.C. Hence the charge is altered to Section 420 of I.P.C. The defence will have liberty to cross examine prosecution witnesses in this regard. The case be put up for framing of charge.” Hence, this revision. 4. Learned counsel for the petitioner assailing the order impugned seriously contended that the order impugned is illegal and perverse and amounts to review of its earlier order, by which the petition filed by the complainant for alteration of charge, was rejected. It was also submitted that a criminal court has no jurisdiction to review its own order and the petition filed for alteration of charge under Section 216 of the Code by the opposite party at the fag end of the trial when the case was fixed for judgment, was not maintainable. 5. Contrary to the aforesaid submissions, the learned counsel representing the opposite party no.2 submitted that the charge can be altered at any stage of the trial and merely because the earlier prayer of the opposite party no.2 for alteration of charge was rejected by the trial court, do not create any embargo of impediment on the court not to exercise the power envisaged in Section 216 of the Code or the right of the court to suo-moto exercise the discretion to alter the charge. 6. For a better appreciation of the issue involved in this case, a reference of Section 216 of the Code is necessary 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. The above provision clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced but whenever said alteration or addition is made, the same is to be read out and informed to the accused. The law governing the trial of criminal offence provides for alteration of charges at any stage of proceedings depending upon the evidence adduced in the case and is completely based upon the total effect of the evidence and documents produced before the trial court. The same can be done either on a petition filed by a party or the court even suo moto can alter the charge considering the broad probabilities of the case based upon total effect of the evidence including documentary evidence. But under Section 217 of the Code, the court has to give an opportunity to recall the witnesses, if necessary, when the charges have been altered. Even there is no bar under the Code that the charges will be altered once during the entire trial rather the same can be altered even more than one and even addition of charges is also permitted. 7. In the instant case, as it appears from the record that the witnesses have substantiated the facts of cheating by this petitioner and it appears to be not merely a case of dishonest misappropriation of their father’s property. 7. In the instant case, as it appears from the record that the witnesses have substantiated the facts of cheating by this petitioner and it appears to be not merely a case of dishonest misappropriation of their father’s property. However, after recording the statement of the accused under Section 313 of the Code, both the parties argued the case and the case was fixed for judgment but on the date of judgment the trial court suo moto altered the charge from Section 403 to under Section 420 I.P.C. It appears that on perusal of the record, the court found the ingredients of cheating whereafter passed the order impugned and liberty has been given to the defence to cross-examine the prosecution witnesses in this regard. 8. The Hon’ble Supreme Court in Jasvinder Saini v. State (Govt. of NCT of Delhi); 2013(7) SCC 256 examined the scope of Section 216 of the Code and held as follows:- “11. … the court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alteration would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. 9. In another case CBI v. Karimullah Osan Khan, (2014) 11 SCC 538 , the Hon’ble Supreme Court has held that Section 216 of the Code gives considerable power to the trial court, even after the completion of evidence, arguments heard and judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. 9. In another case CBI v. Karimullah Osan Khan, (2014) 11 SCC 538 , the Hon’ble Supreme Court has held that Section 216 of the Code gives considerable power to the trial court, even after the completion of evidence, arguments heard and judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused and the conditions mentioned therein has been mandatorily followed. 10. Obviously, the courts can exercise power only when there exists some material before the court, which has some connection or link with the charge sought to be amended, added or modified. The language of Section 216 is very wide and does not seem to indicate that any alteration or addition to a charge can be made only once. From the order impugned, it appears that though the court suo-moto altered the charge and even given liberty to the defence to cross-examine any prosecution witness in this regard but it further appears from the order impugned that the mandate given in Sub-section 2 of Section 216 has not been followed where there is clear ordain “to read and explain to the accused such alteration”. Secondly, the court below has also not discussed the sufficiency of material on record which requires the alteration in the charge. 11. Regard being had to the facts and circumstances discussed above, I have no hesitation in holding that the court has every power to alter the charge even before pronouncement of the judgment but as I have discussed above, the court below has not complied or followed the mandate given in Sub-section 2 of Section 216 of the Code. Hence, the order impugned dated 16.09.2013 is, hereby, set aside. 12. Accordingly, this revision application is allowed and the matter is remitted to the court below to pass an order in accordance with law following the mandate of Section 216 of the Code.