IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
1. S.B.Criminal Revision Petition No.577/2015
1. Smt.Anita Singh w/o Suresh Charan D/o Raghuraj Singh, R/o Hanuwant A, BJS Colony, Jodhpur.
2. Raghuraj Singh S/o Shri Ram Singh by caste Charan,Aged about 75 years R/o 53, Devi Path, Kanota Bagh,Takhteshahi Road, Police Station Gandhi Nagar, Jaipur.
3. Smt. Manohar Kanwar W/o Raghuraj Singh, Aged about 72 years, R/ 53, Devi Path, Kanota Bagh,Takhteshahi Road, Police Station Gandhi Nagar, Jaipur…….Petitioners
1. State of Rajasthan through PP.
2. Smt. Renu Khidiya W/o Bhupendra Singh D/o Bhawani Singh, Aged about 30 years, By caste Charan, R/o 5/33,Vidhyadhar Nagar, Jaipur…….Respondents
2. S.B.Criminal Revision Petition No.578/2015
Dr. Chetna Agarwal aged about 35 years wife of Shri Divakar Bansal, resident of near Nanak Store, Gol Building, Sardarpura,Jodhpur……Petitioner
1. State of Rajasthan through PP….Non-petitioner
2. Smt. Renu Khidiya W/o Bhupendra Singh, D/o Bhawati Singh, Aged about 30 years, By caste Charan, R/o 5/33,Vidhyadhar Nagar, Jaipur…Complainant-Non-petitioner
Date of Order ::::: 12.09.2016
HON’BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.S.R.Surana, Sr. Advocate with
Mr.Sanjay Yadav, for the petitioners in Revision Petition No.577/2015.
Mr.Mukesh Kumar Saini for petitioner in Revision Petition No.578/2015.
Mr.Prakash Thakuria,Public Prosecutor for State.
Mr.Rakesh Chandel, for the respondents-complainant.
BY THE COURT:
These two Criminal Revision Petitions under Section 397 read with Section 401 Cr.P.C. have been filed by the accused-petitioners against the order dated 5.2.2015 passed by the Special Judge, Women Atrocities and Dowry Cases, Jaipur Metropolitan, Jaipur in Sessions Case No.22/2009 whereby the learned trial Court dismissed the applications filed by the petitioners under Section 216 read with Section 239 Cr.P.C. with a prayer to discharge them for the offences for which they are being prosecuted. As both these petitions are based on common questions of law and fact, with the consent of learned counsel for the parties, they are heard together and are being decided by this common order.
Brief relevant facts for the disposal of these petitions are that marriage between the complainant-Smt.Renu Khidiya and co-accused-Shri Bhupendra Singh took place on 22.4.2004 at Jaipur in accordance with the Hindu Usages and Rites and FIR No.33/2006 came to be registered at Police Station Mahila Thana (East), Jaipur on 26.5.2006 at the instance of the complainant for offences under Sections 498-A, 406, 313 and 120-B IPC and after investigation charge-sheet was filed for the aforesaid offences against the petitioners and co-accused. It is to be noted that petitioner-Smt.Anita Singh is sister-in-law, petitioner-Raghuraj Singh is father-in-law, petitioner-Smt.Manohar Kanwar is mother-in-law of the complainant whereas accused-petitioner Dr.Chetna Agarwal is a practising doctor, who at the time of the said incident was allegedly working in Meera Nursing Home, Jaipur. Learned Court below vide order dated 11.11.2010 directed charge to be framed against the petitioners for aforesaid offences which was challenged by them in this Court by way of S.B.Criminal Revision Petition Nos.25/2011 and 253/2011 respectively and the same were disposed of vide order dated 2.11.2011 in the manner that order dated 11.11.2010 was set aside and the Court below was directed to reconsider the question of framing of charge after considering the judgments cited on behalf of the petitioners and pass a fresh order in accordance with law. In compliance of the order dated 2.11.2011, the Court below reconsidered the question of framing of charge against the petitioners and again vide order dated 7.1.2012 charge for the aforesaid offences was ordered to be framed against the petitioners. The order dated 7.1.2012 was challenged by the petitioners before this Court by way of S.B.Criminal Revision Petition No.172/2012 and S.B. Criminal Revision Petition No.74/2012 and the same were disposed of vide order dated 13.8.2013 with liberty to the petitioners to move an application under Section 216 Cr.P.C. and direction to the Court below to decide the same and further liberty to the petitioners to file revision petition before the High Court against the order which the Court below may pass on the application to be filed by them under Section 216 Cr.P.C. In pursuance of the liberty given to them petitioners filed two separate applications under Section 216 read with Section 239 Cr.P.C. on 19.10.2013 with prayer to discharge them from the offences for which charge-sheet has been filed against them. Learned Court below after hearing the respective parties dismissed the application filed by the petitioners vide impugned order dated 5.2.2015. Feeling aggrieved by the same, petitioners are again before this Court by way of these revision petitions.
The moot question arising for decision in these petitions is “Once the trial Court has ordered to frame charge for some offences against the petitioners and the revision petitions filed by them before this Court challenging the order of framing of charge have been disposed of without setting aside the order of charge, whether prayer to discharge them can be made by the petitioners in an application subsequently filed under Section 216 read with Section 239 Cr.P.C ?”
In support of the petitions, learned counsel for the petitioners jointly submitted as below:-
(1) If no material/evidence is available on record to constitute an offence for which charge has already been framed against an accused, he can be discharged by the trial Court at any subsequent stage including at the stage of considering an application under Section 216 Cr.P.C. also as there is no prohibition or bar that at a subsequent stage of the proceedings trial Court is not empowered to discharge an accused for the offence for which charge has already been framed. Under Section 216 Cr.P.C. the trial Court is empowered not only to alter a charge already framed against the accused and add charge for an offence for which charge has not been framed against him, but also discharge the accused if it is found by the Court that no material is available to consitute the offence for which charge has already been framed. At any subsequent stage also accused can be discharged even if fresh material and evidence has not come on record. Court can reconsider the evidence already available on record to arrive at a finding in fact that the essential ingredients required to constitute the offence in question are not made out. Reconsideration of evidence available on record does not amount to recall/review of the previous order but only ractification of the error committed by the Court.
(2) In the present case, order dated 11.11.2010 was set aside by this Court and the Court below was directed to pass fresh order after considering and keeping in mind the judgments cited on behalf of the petitioners but Court below without following the directions of this Court and without considering and discussing the judgments cited before it on behalf of the petitioners again ordered to frame charge against them in a mechanical way without application of mind vide order dated 7.1.2012 which was again challenged by the petitioners before this Court. This Court while disposing of the petitions filed by the petitioners vide order dated 13.8.2013 not only granted liberty to them to move application under Section 216 Cr.P.C. but also granted further liberty to file revision petition against the order likely to be passed on such application which clearly shows that the question of framing of charge against petitioners was kept open and the direction to the Court below in fact was that the issue to frame charge is required to be reconsidered and the petitioners are liable to be discharged if the Court finds that no offence has been committed by them but the Court below did not consider this aspect of the matter in a proper manner and dismissed their applications under Section 216 read with Section 239 Cr.P.C. merely by observing that after passing of order dated 7.1.2012, there is no substantial change in the facts and circumstances of the case and no fresh evidence has come on record so as to add or alter the charge already framed. Once the order dated 7.1.2012 was challenged by the petitioners before this Court and the petitions filed by them were disposed of vide order dated 13.8.2013 with the aforesaid liberty and direction, it clearly meant that order dated 7.1.2012 stood set aside and a fresh order to frame charge or not was required to be passed by the Court below. It is to be noted that in the applications filed under Section 216 read with Section 239 Cr.P.C., prayer for discharge was made by the petitioners and not for alteration or addition of the charge. (3) This Court under its revisional jurisdiction has wide power to consider in these petitions also whether sufficient evidence is available on record to frame charge against the petitioners for any of the offence for which charge-sheet has been filed against them. Even if their previous revision petitions against the order of framing of charge have not been allowed and only disposed of on their prayer with liberty to move application under Section 216 Cr.P.C., High Court while exercising its revisional jurisdiction at any stage can examine the correctness, legality or propriety of any order passed by a Subordinate Criminal Court and such jurisdiction can be exercised even suo-moto. Hence, the correctness, legality and propriety of the order of framing of charge can be examined by this Court even in these petitions.
(4) In support of the present applications also, several judgments were cited and relied by the petitioners which have although been referred in the impugned order but they have neither been discussed nor reasons have been recorded for their inapplicability in the present case and on this ground alone the impugned order is liable to be set aside and quashed and direction is required to be made to the Court below for fresh consideration.
In support of his submissions, learned counsel relied upon the cases of Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana & Anr. reported in AIR 2016 SC 1197, Swapnil & Ors. Vs. State of Madhya Pradesh reported in 2014 (3) Cr.Court Cases 007 (SC) and Shrerish Hardenia & Ors. Vs. State of Madhya Pradesh & Anr. reported in (2014) 14 SCC 406.
On the other hand, learned Public Prosecutor supported by learned counsel for the respondent-complainant controverting the submissions made on behalf of the petitioner, submitted as below:- (1) As the petitions filed against the order of framing of charge dated 7.1.2012 were not allowed on merit and the same were disposed of on the prayer of the petitioners with liberty to move application under Section 216 Cr.P.C., that order attained finality and the petitioners were not entitled to make fresh prayer for their discharge in the garb of application under Section 216 Cr.P.C. Under Section 216 Cr.P.C. the prayer that can be made is either for alteration or addition of charge and never for discharge as seperate provision is available in Cr.P.C. to an accused for that relief.
(2) Once the stage to discharge an accused under Section 227 or 239 Cr.P.C. is over and Court proceeds to frame charge and that order attains finality, there is no subsequent stage at which the accused can be discharged. Once after framing of charge trial has commenced, accused can either be convicted or acquitted and not discharged in a sessions or warrant case.
(3) In the present case, the application under Section 216 Cr.P.C. has rightly been dismissed by the Court below as there was no substantial change in the facts and circumstances of the case and no fresh evidence was made available on record. Once on the basis of evidence available on record order to frame charge has been passed which has been upheld by this Court also, there is no question of discharge of the petitioners even by this Court in these petitions.
In support of his submissions, learned counsel for the respondent-complainant relied upon the case of Tapati Bag Vs. Patitpaban Ghosh & Ors. reported in 1993 Cr.L.R.3912 (Calcutta High Court).
I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law relied upon on behalf of the parties.
Sub-section (1) of Section 216 Cr.P.C. which falls under Chapter-XVII provides that any Court may alter or add to any charge at any time before judgment is pronounced. This provision does not speak about discharge of an accused against whom charge for an offence has already been framed and it speaks only for alteration or addition to any charge which has already been framed against such an accused. Chapter- XVIII of the Code provides for trial before a Court of Session and Section 227 thereof provides that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 provides that if after such consideration and hearing as aforesaid the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court he shall frame in writing a charge against the accused. It is thus clear that in a case which is triable before a Court of Sessions, these provisions provide in what condition and in what manner the accused can be discharged for an offence for which he has been prosecuted and in what condition and the manner the Sessions Judge would proceed to frame charge against him. A simultaneous reading of Section 216 and Sections 227 and 228 Cr.P.C. makes it abudantly clear that these provisions are entirely separate and independent to each other and where Section 216 Cr.P.C. provides for alteration or addition of a charge in a case in which charge has already been framed against an accused whereas Sections 227 and 228 provide for discharge of an accused at an initial stage or framing of charge against him in a Sessions case. I am of the considered view that in a sessions case once the Court proceeds to frame charge against an accused after declining his prayer to discharge him for the offence for which he has been prosecuted by way of charge-sheet, there is no subsequent stage at which the accused can be discharged. Similarly, Section 239 which falls under Chapter-XXI of the Code providing for trial of warrant cases by Magistrates provides that if upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. This provision also clearly speaks about discharge of an accused at an initial stage in warrant cases. According to Section 240 Cr.P.C. if upon such consideration, examination, if any, and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. These provisions also clearly state that in warrant cases if the Magistrate declines to discharge the accused for the offence for which he has been prosecuted and proceeds to frame charge against him, there is no subsequent stage at which the accused can be discharged in any circumstance.
Hon’ble Supreme Court in the case of Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana & Anr.(supra) after considering many of its previous decisions, in Para 16 of the report has held that:
“The court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Cr.P.C.”
In the aforesaid case, Hon’ble Court no where has held that while considering an application under Section 216 Cr.P.C. or otherwise considering the issue regarding alteration or addition of charge Court is empowered to discharge an accused against whom charge has already been framed at any subsequent stage of the proceedings. Hon’ble Court in this case has only held that in what manner, and on what material and evidence, Court can add or alter the charge.
The question raised in the present case about discharge of an accused at the stage of consideration of an application under Section 216 Cr.P.C. was directly involved in the case of Tapati Bag Vs. Patitpaban Ghosh & Ors. (supra). A learned Single Bench of the Hon’ble Calcutta High Court after considering the provisions of Sections 227, 228 and 216 Cr.P.C. held that it is needless to mention that the question whether charge should be framed against the accused or he should be discharged has to be considered simultaneously and if on such consideration the Court thinks that the accused should not be discharged and rather charge should be framed against him, in that case the charge has to be framed against the accused. It is evident from the scheme of the provisions of the Chapter-XVIII of the Criminal Procedure Code as well as from the logic of the sequence that once the Court decides to frame charge under Section 228 Cr.P.C., there is no question of discharging him at a later stage by exercising the power under Section 227 Cr.P.C. Once charge has been framed under Section 228 the trial has to proceed according to the procedure provided in the sections following the Section 228 Cr.P.C. and the process cannot be put to back-gear for discharging the accused thereafter under Section 227 Cr.P.C. Where a charge has been framed by the Court of Session under Section 228, the said Court thereafter cannot discharge the accused under Section 227 Cr.P.C. Even if an accused against whom a charge has been framed under Section 228 Cr.P.C. feels aggrieved by the framing of charge he has either to face the trial or he may approach the High Court in its revisional jurisdiction. If the Court of Session remains free to discharge an accused on reconsideration under Section 227 even after a charge has been framed under Section 228, in that case it would be open to the accused persons against whom charge has already been framed to move the same Court one after another for reconsideration and discharge on repeated occasions thereby making it practically impossible to proceed with the trial of the case expeditiously or at all, even if such moves lack merit. After taking into consideration Section 216 Cr.P.C., it was further held that a plain reading of the section would show that the alteration or addition referred to therein contemplates modification of or addition to charge but not discharging an accused in respect of a charge already framed so as to bring the trial itself to an end in respect of such accused. There may be addition of a new charge or even substitution of a charge in an appropriate case but Section 216 does not contemplate discharge of an accused or the termination of the trial in respect of any accused. Sub-section (2) requires that every alteration or addition to a charge has to be read and explained to the accused. The question of reading and explaining such alteration or addition would be meaningless in a good number of cases if discharge is contemplated by such alteration or addition. Sub-sections (3) and (4) speak of proceeding with the trial or of directing a new trial or adjourning the trial. This also is a clear indication that any alteration or addition to charge shall not be of such nature as to get the accused discharged and bring the trial to an end in respect of that accused. Sub-section (5) requires that where 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 on the same facts. Here also the sub-section contemplates of proceeding with the trial with fresh sanction, if necessary, and not ending the trial in respect of any accused by any obliteration of the charge. It is therefore evident that Section 216 does not empower the court to discharge an accused and bring the trial itself to an end in respect of an accused against whom a charge has already been framed, without following the procedure prescribed in the Code regarding the trial of a case. It was also held that Section 227 being designed for a particular stage of the judicial proceeding one cannot revert to that provision when that stage has already been crossed. It was also held that the Court of Session has no power to discharge an accused under Section 227 once a charge under Section 228 has already been framed.
The view taken by the learned Single Bench of the Calcutta High Court is sound as it is supported by reasons and the relevant legal provisions and I also endorse the same. In the present case, petitioners alongwith co-accused are facing trial before a Court of Sessions. As already said, charge for the aforesaid offences was directed to be framed against the petitioners by the Court below vide a fresh order dated 7.1.2012 which clearly means that the prayer made on their behalf for their discharge was declined. No doubt the petitioners had a right to challenge the order dated 7.1.2012 before this Court by way of a revision petition and in fact they challenged that order as already said, but petitions filed by the petitioners were disposed of by this Court vide order dated 13.8.2013 on their own prayer with liberty to move an application under Section 216 Cr.P.C. Disposal of petitions filed by the petitioners against the order dated 7.1.2012 means that this Court did not find any merit in the petitions filed by the petitioners and the order dated 7.1.2012 was affirmed and upheld by this Court and the same attained finality. Once the order dated 7.1.2012 attained finality even at the level of High Court there is no question of discharge of petitioners at any subsequent stage. The only liberty which was given to the petitioners was to move an application under Section 216 Cr.P.C. but that does not mean that a new right was created in their favour to apply for their discharge. No illegality, perversity or impropriety has been committed by the Court below while refusing their discharge.
Consequently, both the revision petitions being meritless are, hereby, dismissed. Stay applications also stand disposed of.
(PRASHANT KUMAR AGARWAL), J teekam (Reserved order)