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Himachal Pradesh High Court · body

2019 DIGILAW 697 (HP)

Neeru Shabnam v. Manoj Kumar

2019-06-12

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, challenge has been laid to orders dated 2.4.2018 and 31.7.2018, passed by learned Judicial Magistrate, 1st Class, Court No. III, Shimla, District Shimla, Himachal Pradesh, in complaint case No.52/2 of 2017/14, titled as Manoj Kumar vs. Dr. Neeru Shabnam, whereby learned Court below while dismissing the plea for discharge having been made by the petitioner/accused, fixed the matter for framing additional charge. 2. Precisely, the case of the petitioner as projected in the petition at hand and also argued by Mr. Atul Jhingan, Advocate, is that in view of the averments contained in the complaint having been filed by the respondent (hereinafter referred to as the complainant’), learned Court below ought to have proceeded with the matter as a '’Summons case’’ not as a '’warrant case’’ and as such, impugned orders, as referred hereinabove, are required to be quashed and set-aside. Perusal of the averments contained in the complaint (Annexure P-1) under Section 500 of IPC, clearly suggest that there was no occasion for the Court below to frame charge and subsequently allow the application having been filed by the complainant under Section 216 Cr.P.C for alteration of charge. Undoubtedly, perusal of order dated 2.4.2018 passed by learned Court below suggests that learned Court below initially proceeded to decide the case as a “warrant case” and wrongly stated in the order that there are sufficient grounds to frame charge against the accused. 3. Mr. Vishal Bindra, learned counsel representing the complainant while referring to order dated 28.4.2018, contended that since notice of accusation has been put to the petitioner-accused, there is no force in the arguments of learned counsel representing the petitioner that Court has proceeded to decide the case at hand as a “warrant case”. 4. Having perused the material available on record, this Court finds that on 2.4.2018 Court below held consideration on charge, whereas complaint filed under Section 500 of IPC ought to have been decided as “Summons case” and there was no requirement, if any, for consideration on charge. Since matter came to be listed for consideration on charge on the aforesaid date, petitioner/accused also raised plea for discharge, which was ultimately turned down. Since matter came to be listed for consideration on charge on the aforesaid date, petitioner/accused also raised plea for discharge, which was ultimately turned down. Subsequently, on 28.4.2018 learned Court below put notice of accusation to the accused for having committed the offence punishable under Section 501 of IPC and thereafter complainant moved an application under Section 216 of the Code of Criminal Procedure for alteration of charge. Vide order dated 31st July, 2018 learned trial Court partly allowed the application under Section 216 Cr.P.C. filed by the complainant and listed the matter for framing of additional charge on 25.8.2018. 5. Though, having perused order dated 2.4.2018, this Court has no hesitation to conclude that learned Court below initially wrongly proceeded to decide the case as a “Warrant case”, but as has been noticed hereinabove, subsequently, Court below vide order dated 24.8.2018 rectified its mistake and put notice of accusation to the accused. Since there is no specific provision contained in Criminal Procedure Code, which provides for alteration of notice of accusation in “Summons case”, court can alter notice of accusation while exercising power under Section 216 Cr.P.C, which empowers court to alter charge. There is no significant difference between “charge” and “notice of accusation”, save and except that charge is framed in “warrants case” and notice of accusation is put in a “summons case”. Needless to say, charge can be altered at any stage before pronouncement of judgment, as has been enshrined under Section 216 Cr.P.C and as such, there appears to be no force in the arguments of learned counsel representing the petitioner that learned Court below erred while passing impugned order dated 31st July, 2018 accepting prayer of the complainant for alteration of charge. 6. Consequently, in view of the above, this Court finds no merit in the present petition and same is accordingly dismissed. However, before parting, this Court wish to observe that learned Courts below should be more careful in using legal phraseology while passing orders because words/ language, if not used properly may lead to certain confusions, which ultimately result in multiplicity of litigation. Interim order dated 3.10.2018 passed by this Court is vacated. Pending application (s), if any, also stands disposed of.