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2019 DIGILAW 1563 (JHR)

Tapsi Choudhary v. Union of India

2019-09-06

DEEPAK ROSHAN

body2019
JUDGMENT : 1. The instant revision application is preferred for setting aside the order dated 21.01.2013 passed by the learned court of Special Judicial Magistrate, CBI in Case No. R.C.13(S)/2009, whereby the petitioner’s prayer for alteration/addition of charge under Section 216 of Cr. P.C has been rejected. 2. The instant case has a chequered history. As per the informant, on 09.05.2009, about seven girls and four boys including the informant, who were part of Air Hostess Academy, Chandra Centre, Sakchi, had joined Hotel Sonnet from 09.05.2009, only for the purpose of undergoing industrial training, and the informant and other trainees were also accompanied by co-trainee named Mausumi Chowdhary who was undergoing training at House Keeping Department which includes Laundry. On 09.05.2009 at about 12 to 12:15, while Mousumi Chowdhury was undergoing training of Ironing, her long scarf got stuck in the ironing machine due to which she got strangulated and got injured. She was soon rescued by the other staffs of the Hotel after which she was immediately rushed to Tata Main Hospital. As per the informant, on the same day when the informant had gone to meet Mousumi Chowdhury at the Hospital, she was seen lying unconscious and was undergoing treatment. The informant further stated that since she was lying unconscious, the information of this incident has been given to the police after a delay. The informant has also stated that she has no knowledge as to for whose irresponsibility, the accident took place. On 20.05.2009, Mousumi Chowdhury died in course of her treatment at T.M.H after which Section 304A of the Indian Penal Code was added to the instant case. 3. Thereafter, Tapasi Choudhary-mother of the deceased-Mousumi Choudhary, wrote a letter to this Hon’ble Court, which was registered as W.P. (PIL) No.4681 of 2009. In the said letter she has stated that since she suspects that her daughter was raped and subsequently murdered for which reason, she had been requesting the Investigating Officer to look into the matter but in vein. In the said letter, it was prayed inter-alia for a direction upon the Investigating Officer to take her statement as a witness and also for registering a case under Section 302 of the Indian Penal Code instead of Section 304A of the Indian Penal Code. In the said letter, it was prayed inter-alia for a direction upon the Investigating Officer to take her statement as a witness and also for registering a case under Section 302 of the Indian Penal Code instead of Section 304A of the Indian Penal Code. This Hon'ble Court vide its order dated 14.10.2009, ordered the Investigating officer to record the statement of Tapasi Choudhary and accordingly her statement was recorded on 14.10.2009. Thereafter, vide order dated 15.10.2009, this Hon'ble Court directed the CBI to undertake the charge of investigation of Bistupur P.S. Case No.152 of 2009 for taking the case to its logical conclusion by amending or impleading the relevant sections under which the case is fit to be registered. 4. Pursuant to the aforesaid order passed by this Hon’ble Court, a case was registered by the CBI being R.C. Case No.13(S) of 2009-AHD-R and after investigation, the CBI submitted Final Form/Charge Sheet on 08.02.2010 against Ravi Bipin Parikh and Ravindra Kumar Behra under Section 287 of the Indian Penal Code. 5. Being aggrieved by the order dated 15.10.2009 passed by this Hon'ble Court in W.P. (PIL) No.4681 of 2009, Ravi Bipin Parikh preferred an appeal being SLP (CR) No.3428 of 2010 before the Hon'ble Apex Court. Vide order dated 30.03.2010, the Hon'ble Apex Court while dismissing the application of the Petitioner-Ravi Bipin Parikh, directed the Director, CBI for entrusting fresh investigation to another team of officers. 6. On such direction of the Hon’ble Apex Court, fresh investigation team was appointed, and a prayer was also made to the learned court of Special Judicial Magistrate, CBI to add Section 302 of the Indian Penal Code to the F.I.R and after such prayer was allowed, Section 302 of the Indian Penal Code was added. 7. After thorough investigation, the CBI submitted supplementary charge-sheet on 06.07.2011 against Ravi Bipin Parikh, Ravindra Kumar Behra and Swaroop Chakravarty for the offences punishable under Sections 287, 337, 338, and 304A of the Indian Penal Code. On 17.10.2011, substance of accusation was explained to the opposite parties by learned court of Special Judicial Magistrate, CBI to which they pleaded not guilty and claimed to be tried. 8. On 17.10.2011, substance of accusation was explained to the opposite parties by learned court of Special Judicial Magistrate, CBI to which they pleaded not guilty and claimed to be tried. 8. Thereafter, on 09.01.12, a petition under Section 216 of the Code of Criminal Procedure was filed by the petitioner praying therein to alter the charge from Sections 287, 337, 338, 304A/34 IPC to Section 302/34 of IPC or in the alternative, charge under Section 304 Part II/ 34 of IPC. 9. At this stage it is pertinent to mention here that during the pendency of the said petition filed u/s 216 Cr.P.C., P.W.1-Ajay Sharma was examined on 23.04.2012. He has specifically stated that he is an air-conditioner mechanic at Hotel Sonnet and he was also one amongst the other persons who had rushed upon hearing the shouts of the deceased and after opening the calendering machine, he along with the other staffs were able to extricate the deceased and the scarf which was entangled. This witness has categorically denied the presence of any of the opposite parties at the place of occurrence. 10. After hearing the parties, the learned Court of Special Judicial Magistrate, CBI rejected the petition under Section 216 of the Code of Criminal Procedure dated 21.01.2013 filed by the petitioner on the ground that since only one prosecution witness has been examined, who in his evidence had nowhere stated anything from which it could be inferred that ingredients under Section 302/34 of Indian Penal Code or in the alternative charge under Section 304 Part II/34 of IPC were attracted. The learned trial court further held that alteration of charge without any additional material on record will amount to recalling the order passed previously which is not permissible in law. 11. Mr. Indrajit Sinha, learned counsel for the respondent has raised a preliminary objection regarding maintainability of the instant revision application. It has been submitted that it is well settled that no revision can be maintained against an order which is interlocutory in nature and the feasibly test as to whether an order is interlocutory or not is to see that in the event the objection raised by the party are upheld, then the same would result in culminating of the trial. The learned counsel placed reliance on the judgment of Hon'ble Apex Court rendered in the case of K.K. Patel versus State of Gujarat reported in (2000) 6 SCC 195 para 11 herein below: “That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. 12. Relying on the aforesaid judgment, the petitioner submits that since by upholding the objection i.e. alteration of charge, the trial would not end and as such the impugned order being interlocutory in nature can not be assailed by way of revision. 13. Per contra, Mr. Mahesh Tiwari, learned counsel for the petitioner opposed the preliminary objection and submits that the learned trial court was totally misled by the submission of CBI that there were no materials and circumstances present so as to amount the charge u/s 302 IPC but the learned trial court itself has observed in para 5 at page no.2 of the impugned order that when the culminating machine was running on the date of occurrence, two staffs of laundry section were working on the machine for the purpose of ironing the clothes. The above two staffs were working on the delivery side of the machine and none was present on the feeding side on the date of occurrence. It has been further submitted by the learned counsel for the petitioner that facts collected by CBI clearly shows that the deceased was completely alone at the time of occurrence. Even the supervisor who had trained the deceased, was also on weekly off. The very directions by the hotel management to allow the victim to work in laundry section without any supervisor and without any lady staff itself creates suspicion. It has been further submitted by the learned counsel for the petitioner that from paragraph-18 of the chargesheet it is evident that Dhiraj Vij, Director of AHA and Director of Hotel Sonnet being primarily responsible, were never seen at the time of occurrence which clearly transpires that either they have intentionally or they were operating the offence. It has been further submitted by the learned counsel for the petitioner that from paragraph-18 of the chargesheet it is evident that Dhiraj Vij, Director of AHA and Director of Hotel Sonnet being primarily responsible, were never seen at the time of occurrence which clearly transpires that either they have intentionally or they were operating the offence. Learned counsel for the petitioner has further submitted that there are sufficient material available on record before the learned trial court that the management of the Hotel Sonnet had full knowledge of the danger prevailing in the laundry section of the Hotel Sonnet and from the facts and circumstances of the case it is crystal clear that they are liable, not only for the charge under Section 304A IPC but they are also liable for charge either under Section 302/34 IPC or under Section 304A part 2 IPC. He further submits that the learned trial court failed to construct these facts and dismissed the petition preferred by the petitioner for amending charge under Section 216 of Cr.P.C. The very fact that when the calendering machine was out of order since 2005 itself, then sending the victim to work on that machine is clear indication of offence under Section 302 and not merely accident. As such the learned trial court would have exercised its power under Section 216 of Cr.P.C whereby any court may alter or add to any charge at any time before the judgment is pronounced. 14. Having heard learned counsels for the parties and after perusing the documents available on record, it transpires that initially on the basis of written report of Afreen Naaz, a case under Sections 287/387/338 IPC was registered on 13.05.2009, being Bistupur P.S. Case No.152/2009, against the proprietor of Hotel Sonnet, Jamshedpur and against its management. Later on after the death of Maushmi Choudhary, Section 304 A IPC was also added in the FIR after taking permission from the court of learned CJM, Jamshedpur. Further after submission of aforesaid FIR, mother of the deceased-Tapsi Choudhary (petitioner herein) moved a petition through a letter before this Hon'ble High Court alleging that her daughter-Mausami Choudhary has been raped and murdered. The said letter was recorded as W.P. (PIL) No. 4681/2009 by this Hon'ble Court. Further after submission of aforesaid FIR, mother of the deceased-Tapsi Choudhary (petitioner herein) moved a petition through a letter before this Hon'ble High Court alleging that her daughter-Mausami Choudhary has been raped and murdered. The said letter was recorded as W.P. (PIL) No. 4681/2009 by this Hon'ble Court. After hearing the said petition, the Hon'ble Court vide its order dated 15.10.2009 directed the investigation of Bistupur P.S. Case No.152/2009 to be handed over to CBI. The Hon'ble High Court also directed that the statement of the petitioner (mother of the deceased) be recorded by the I.O and from part of the investigation. In compliance of the aforesaid order of the High Court, CBI AHD, Ranchi Branch registered case on 17.10.2009 under Sections 287, 337, 338/304 A IPC. The CBI (AHD) Ranchi Branch conducted the investigation and filed the chargesheet on 08.02.2010 under Section 287 IPC against Ravi Bipin Parikh and Ravi Kumar Behra. After filing of the aforesaid chargesheet by CBI the matter came up for hearing before this Court. This Hon'ble Court observed that case under Section 302 IPC has not been registered by CBI despite complaint made by the mother of the deceased. Thereafter, this Hon'ble Court vide its order dated 13.02.2010 directed the CBI to register the case as alleged by the mother of the deceased and thereafter submit chargesheet in relevant provision of IPC in the light of the evidence collected by them. Aggrieved by the order dated 30.03.2010 of this Hon'ble Court, the accused persons preferred SLP before the Hon'ble Apex Court which was dismissed on 06.04.2011. The Hon'ble Apex Court made observation that the investigation of the case by the State Police and the present team of CBI has not been found satisfactory so it is expected that Director, CBI would entrust further investigation to another team of officers. In compliance to the order of the Hon'ble Apex Court, investigation was done by new team and thereafter supplementary chargesheet was submitted. On the basis of materials available on record and the supplementary chargesheet, cognizance under Sections 287/337/338/304A IPC was taken against Ravi Bipin Parik, Ravi Kumar Behara and Swaroop Chakrawarty. Thereafter on 17.10.2011, substances of accusation was explained to the accused person. On the basis of materials available on record and the supplementary chargesheet, cognizance under Sections 287/337/338/304A IPC was taken against Ravi Bipin Parik, Ravi Kumar Behara and Swaroop Chakrawarty. Thereafter on 17.10.2011, substances of accusation was explained to the accused person. In the impugned order, the learned trial court has held that one prosecution witness have been examined in this case which in his evidence had nowhere stated anything from which interference can be drawn that ingredient of Section 302, 304 part 2 IPC is attracted. The learned trial court had further held that alteration of charge without any additional material on record will amount to recalling the order passed previously which is not permissible in law and finally the court below rejected the petition filed by the petitioner. 15. Section 216 of the Code of Criminal Procedure deals with the alteration or addition of charge, though it does not set out the circumstances in which additional alteration may be made. The Hon'ble Supreme Court in the case of Jasvinder Saini Vs. State (2013) 7 SCC 256 (para-11) has held as under: “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 trial having regard to the evidence that may come before the court.” 16. In the light of the aforesaid ratio and on perusal of the impugned order, it would transpire that the trial court has committed no error of jurisdiction in refusing the prayer of the petitioner. The trial court has considered the materials available on record and at that point of time, only one prosecution witness was examined and according to the trial court, the said witness had not stated anything from which an interference can be drawn that Section 302/34 or Section 304 (Part-II)/34 of Indian Penal Code is attracted. The trial court had also considered that there was no additional material (evidence) to show why such alteration may be made. 17. The trial court had also considered that there was no additional material (evidence) to show why such alteration may be made. 17. Moreover, the materials on which the petitioner has been seeking addition of charges under Section 302 of Indian Penal Code were considered by a Division Bench of this Court in W.P. (P.I.L) No.4681 of 2009 and by an order dated 30.03.2010 this Hon'ble Court had directed the CBI to lodge an FIR in the light of the allegations made by the petitioner herein. However, the Hon'ble Supreme Court in S.L.P.(Crl.) No.3248 of 2010, vide its order dated 06.04.2011, directed the CBI to complete the investigation and file a supplementary chargesheet and also directed that the investigating team be changed by the Director, CBI. After investigation, the CBI filed supplementary charge sheet on 06.07.2011 under Sections 287, 337, 338 & 304A of Indian Penal Code. The aforesaid chargesheet by the new team of CBI was also placed before the Division Bench of this Hon'ble Court hearing W.P.(PIL) No.4681 of 2009 and this Hon'ble Court by its order dated 29.10.2012 disposed of the writ petition by observing that “the matter has been enquired by the team of the officers appointed by the Director, CBI in pursuance of the order of the Hon'ble Supreme Court dated 06.04.2011 and now the trial is proceeding. The trial court is directed to take all necessary steps for expeditious disposal of the case in the light of direction of the Hon'ble Supreme Court given in the order dated 06.04.2011.” 18. The trial has proceeded and by way of supplementary affidavit filed on 28.06.2019, it has been brought on record that 16 witnesses have already been examined on behalf of the prosecution and deposition of P.W.1 to P.W.14 have been annexed with the said supplementary affidavit. The informant/petitioner herein has also been examined as P.W.14. From perusal of the deposition of the prosecution witnesses, it clearly transpires that none of the witnesses have been examined so far including the informant who have alleged anything which would give rise to broad probability that the charges need to be altered or new charge needs to be added. The informant/petitioner herein has also been examined as P.W.14. From perusal of the deposition of the prosecution witnesses, it clearly transpires that none of the witnesses have been examined so far including the informant who have alleged anything which would give rise to broad probability that the charges need to be altered or new charge needs to be added. As mentioned herein above that the aforesaid charge sheet was also placed before the Hon'ble Court and this Court after going through the charge sheet in question disposed of the writ petition by observing that the matter has been enquired by the team of the officers appointed by the Director, CBI in pursuance of the order of the Hon'ble Supreme Court dated 06.04.2011 and now the trial Court is proceeding and did not observe anything regarding framing of charge. Further, Section 216 of Cr.P.C. itself gives ample power to the Court to alter or amend any charge before judgment is pronounced, if the question of any such addition or alteration would 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 trial having regard to the evidence that may come before the court. As aforesaid, from perusal of the deposition of the prosecution witnesses, it transpires that none of the witnesses so far examined have alleged anything which would give rise to broad probability that the charges need to be altered or new charge needs to be added. As such, I am of the considered opinion that the impugned order does not suffer from any infirmity. 19. Before concluding, I wish to clarify that since I am not inclined to interfere with the order passed by the learned court of Special Judicial Magistrate, CBI in Case No. R.C.13(S)/2009, whereby the petitioner’s prayer for amending the charge filed under Section 216 of Cr. P.C has been rejected, on merit, I have not dealt the preliminary objection on maintainability of revision application raised by the respondent. 20. In view of the aforesaid facts, discussions and judicial pronouncement, the instant revision application is dismissed. 21. Let the lower courts records be sent to the court concerned, forthwith. Revision dismissed.