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Jharkhand High Court · body

2016 DIGILAW 179 (JHR)

Ram Kewal Soni v. State of Jharkhand

2016-01-22

RONGON MUKHOPADHYAY

body2016
ORDER : In this application, the petitioner has prayed for quashing the order dated 17.01.2005, passed in Cr. Appeal No. 9/2004, whereby and whereunder a direction was given to the learned trial court to alter the charge with specific material against each of the accused since there has been a glaring defect in framing the charge. 2. A first information report was instituted by one Kailash Bihari Mahto, in which allegation was made with respect to the robbery committed in the house of the informant by breaking open the window and taking away various articles at gunpoint. 3. Based on the aforesaid allegations, G.R. Case No. 37 of 2002, was instituted. 4. After investigation, the chargesheet was submitted against the petitioner and other accused persons for the offence under Sections 392 and 411 of the Indian Penal Code. Charge was framed under Sections 392 & 411 of the Indian Penal Code, to which the accused persons pleaded not guilty and claimed to be tried. On conclusion of the trial, vide judgment dated 30.04.2004, the learned Chief Judicial Magistrate, Lohardaga convicted the petitioner for the offence under Section 411 of the IPC, whereas an order of acquittal was recorded for the offence under section 392 of the IPC and the petitioner was accordingly convicted to rigorous imprisonment for three years. Against the order of conviction and sentence dated 30.04.2004 (sentence passed on 1.5.2004), the petitioner and other convicted persons had preferred an appeal before the learned Sessions Judge, Lohardaga being Cr. Appeal No. 9 of 2004 and other analogous appeals. During hearing of the criminal appeal, since a defect was pointed out on behalf of the appellant, the learned Sessions Judge vide order dated 17.01.2005 had directed for sending the case record to the learned Magistrate to alter the charge with a specific material against each of the accused providing them opportunity to cross-examine if they so desire and if they desire to produce defence evidence, they may be permitted to adduce such evidence. The petitioner being aggrieved with the said order dated 17.01.2005 has preferred the present application under Section 482 Cr.P.C.. 5. Heard Mr. A.S. Dayal, learned counsel for the petitioner and Mr. Vijay Shankar Prasad, learned A.P.P. for the State. 6. Mr. The petitioner being aggrieved with the said order dated 17.01.2005 has preferred the present application under Section 482 Cr.P.C.. 5. Heard Mr. A.S. Dayal, learned counsel for the petitioner and Mr. Vijay Shankar Prasad, learned A.P.P. for the State. 6. Mr. A.S. Dayal, learned counsel for the petitioner, has assailed the impugned order dated 17.01.2005 by submitting that there was no omission or irregularity and the charge framed against the petitioner was in order as the petitioner was explained with respect to recovery of articles from Amlatoli Somwar Bazar, P.S. & District-Lohardaga. It has been submitted that the learned Sessions Judge, Lohardaga while passing the order dated 17.01.2005 should have set aside the judgment while directing the trial from the stage of framing of charge. 7. Mr. Vijay Shankar, learned A.P.P., on the other hand, has submitted that from the order dated 17.01.2005, it appears that the defect in framing of charge was pointed out at the instance of the petitioner and since recoveries were made from two different places but charge was only framed with respect to recovery made against the petitioner from Amlatoli Somwar Bazar, P.S. & District-Lohardaga, no occasion arises to cause interference in the order dated 17.01.2005. 8. The basis of the order dated 17.01.2005 seems to be with respect to the charge framed against the accused persons showing recovery from Amlatoli Somwar Bazar, P.S. & District-Lohardaga, although from one of the co-accused-Jamil Ansari, recovery was made from Chiri Barwatoli, P.S. Kuru, District-Lohardaga. The charge, which had been framed, seems to be with respect to the recovery made from Amlatoli Somwar Bazar, P.S. & District-Lohardaga and considering the fact that no specific charge had been framed against the accused persons, the direction for altering the charge was passed by the learned Sessions Judge, Lohardaga. 9. Section 215 of the Code of Criminal Procedure deals with effect of errors in the charge and the same reads as follows:- "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. 10. 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. 10. Section 464 of the Code of Criminal Procedure is with respect to the effect of omission to frame or absence of or error in charge and the same is re-produced below:- "464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:- Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction". 11. Section 465 of Cr.P.C. deals with finding or sentence when reversible by reason of error, omission or irregularity and the same is quoted herein below:- "465. Finding or sentence when reversible by reason of error, omission irregularity. 11. Section 465 of Cr.P.C. deals with finding or sentence when reversible by reason of error, omission or irregularity and the same is quoted herein below:- "465. Finding or sentence when reversible by reason of error, omission irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings". 12. The present petition for quashing of the order dated 17.01.2005 has been filed by the accused-Ram Kewal Soni, whereas the occasion for passing the order dated 17.01.2005 was the hearing of Cr. Appeal Nos.7/2004, 8/2004 and 9/2004. There is nothing on record to show that the other appellants being aggrieved by the order dated 17.01.2005 has preferred any application for setting aside the same. It is an admitted position that the recovery against the petitioner was made from Amlatoli Somwar Bazar, P.S. & District-Lohardaga and therefore there was no occasion for the accused-petitioner to be misled by such error or omission and the same has not occasioned a failure of justice. 13. Section 215, Section 464 and Section 465 of the Code of Criminal Procedure are with respect to errors or omissions of charge and the common thread, which runs through all these sections are that there has to be a failure of justice on account of such errors, omission or irregularity. The impugned order dated 17.01.2005 does not disclose as to how the petitioner has been prejudiced or the reason, for which failure of justice has been caused so far as the petitioner is concerned. 14. The impugned order dated 17.01.2005 does not disclose as to how the petitioner has been prejudiced or the reason, for which failure of justice has been caused so far as the petitioner is concerned. 14. The object of Section 215 and Section 464 of the Code of Criminal Procedure is to prevent failure of justice and if the two sections are conjointly read would reveal that whatever the irregularities in framing of charge, the same is not fatal unless there is a prejudice caused to the accused. As has been indicated above, the order dated 17.01.2005 does not disclose the prejudice, which has been caused to the accused and there being no reasons whatsoever, which is contrary to the requirements of Section 215 and Section 464 of the Code of Criminal Procedure, the impugned order deserves to be interfered with. Accordingly, in view of the what has been stated above, this application is allowed and the impugned order dated 17.01.2005, passed in Cr. Appeal No. 9 of 2004, is hereby quashed and set aside with a further direction to the learned Sessions Judge, Lohardaga to dispose of Cr. Appeal No. 9 of 2004 expeditiously. Application allowed.