Rajesh Kumar Kaura vs State Of U.P. And 2 Others
2019 Latest Caselaw 5847 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 70
 

 
Case :- APPLICATION U/S 482 No. - 26101 of 2019
 

 
Applicant :- Rajesh Kumar Kaura
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Ronak Chaturvedi
 
Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
 

 

 
Hon'ble Sanjay Kumar Singh,J.

1. Sri Vivek Kumar Singh & Sri Mayank Yadav, Advocates, have filed their vakalatnama on behalf of opposite party no.2, is taken on record. 

2. Heard Sri Ronak Chaturvedi, learned counsel for the applicant and learned Additional Government Advocate for the State/opposite party no.1, Sri Vivek Kumar Singh, learned counsel for the opposite party no.2. Perused the record with the assistance of learned counsel for the parties.

3. This application under section 482 Cr.P.C. has been preferred by the applicant with a prayer to quash the order dated 03.06.2019 passed by Additional Session Judge/Fast Track Court-I, Meerut in S.T. No.924 of 2016 (State vs. Dr.Vishal Arya and another), under Section 498A/306 I.P.C. arising out of Case Crime No.414 of 2015, Police Station Sadar Bazar, District Meerut, whereby application dated 26.03.2019 of the informant (Application No.34 Kha) for framing the charge under section 302 I.P.C. against the accused persons has been rejected.

4. Learned counsel for the applicant assailing the impugned order dated 03.06.2019 submitted that his application dated 26.03.2019 has not been decided by the trial court on merit considering the statements of P.W.-1, P.W.-2 and P.W.-3 recorded during the course of trial. It is further submitted that it is well settled that an application under section 216 Cr.P.C. can be moved at any stage of trial before the judgement is pronounced but the trial court has rejected the application dated 26.03.2019 of the applicant mainly on technical ground that the order dated 31.01.2018, whereby discharge application (ApplicationNo.5Kha) under section 227 Cr.P.C. of the accused was rejected and direction was given to frame charges under sections 498A and 306 I.P.C., has not been challenged by the prosecution, therefore, same has become final. It is further submitted that another ground of rejecting the application dated 26.03.2019 of the applicant is that statement under section 313 Cr.P.C. has already been recorded, therefore, moving application under Section 216 Cr.P.C. at this stage indicate that the informant wants to linger on the trial proceeding. Learned counsel for the applicant has also submitted that against the application dated 26.03.2019, oral objections were raised on behalf of the accused persons but no written objection was filed in the trial court.

It is next submitted that in view of the provision of Section 216 Cr.P.C. the application dated 26.03.2019 of the applicant is fully maintainable at this stage because trial is pending in the matter. He has also submitted that since application dated 26.03.2019 has not been decided on merit,therefore, prejudice has been caused to the informant.

5. Learned counsel for the applicant in support of his aforesaid submissions has placed reliance on the following judgements of the Apex Court :-

5.1 Umesh Kumar vs. State of Andhra Pradesh and another, (2013)10, Supreme Court Cases, 591. The observation made by the Apex Court in Paragraph No.33 of the said judgement is reproduced here-in-below:-

"Thus, in view of above, the order of the High Court impugned before us cannot be termed as a final decision. The order is subject to further order which could be passed by the trial court under Section 216 Cr.P.C., on the basis of the evidence to be led during trial. If the impugned order is dubbed as having attained finality, the provisions of Section 216 Cr.P.C. would render otiose/nugatory. Thus, the same is to be read that the said order had been passed taking into consideration the material which was available "at that stage" and it is still open to the trial court to add or alter the charges according to the evidence produced before it." 

5.2. In the case of Dalbir Singh vs. State of U.P., 2004 (5) Supreme Court Cases, 334, the following observations made by the Apex Court in Paragraph nos.12, 13, 14 & 17 are reproduced there-in-below:-

12. The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lakhjit Singh & another vs. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non- framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC. The relevant para of the observation made in para 9 of the report reads as under: "The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and; therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 Cr. P.C. and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross- examination of the witnesses, as well as the answers given under Section 313 of the Cr. P.C. would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also.

13. In Sangaraboina Sreenu v. State of A.P. (supra) the judgment is a very short one of just two paragraphs. In the first paragraph it is mentioned that the trial Court convicted the accused under Section 302 IPC on the charge that he poured kerosene on the body of his wife and set her on fire but the High Court set aside the said conviction and convicted the accused under Section 306 IPC. Paragraph 2 of the judgment which contains the whole reasoning for allowing the appeal reads as under :

"This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC which was the only charge framed against him the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 Cr.P.C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr. P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof."

14. Here the Court proceeded to examine the question that if the accused has been charged under Section 302 IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306 IPC having regard to Section 222 Cr.P.C. Sub-section(1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of the same Section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 222 Cr.P.C. is in the nature of a general provision which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said Section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely Chapter XXXV which deals with Irregular Proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub- section (1) of this Section provides that 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. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh (supra) though Section 464 Cr.P.C. has not been specifically referred to but the Court altered the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464 Cr.P.C. and keeping in view Section 222 Cr.P.C. alone, the conviction of the appellant therein under Section 306 IPC was set aside.

17.There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."

6. Per contra, Sri Vivek Kumar Singh, learned counsel appearing for the opposite party no.2 vehemently opposed the prayer made by the applicant and refuting the submissions advanced on behalf of the applicant submitted that at the stage of considering the discharge application of the accused persons under section 227 Cr.P.C., serious objections were raised from the side of the prosecution for framing charge under section 302 I.P.C. but the same was turned down by the trial court vide order dated 31.01.2018 and the said order has not been challenged by the prosecution before the High Court, therefore the order dated 31.01.2018 has become final. It is also submitted that charge under Section 302 & 306 I.P.C. cannot be framed simultaneously because both the offence are separate offence. It is also submitted that there is no eye witness of this incident. Learned counsel for the opposite party no.2 vehemently urged that considering the material on record, no prima-facie offence under section 302 I.P.C. is made out, therefore, the present application is liable to be dismissed. Learned counsel for the opposite party no.2 in support of his submission has placed reliance  in the case of Brijesh vs. State of U.P. 2001 (43) ACC, 564.

7. After hearing learned counsel for the parties at length, this Court is of the view that from section 216 (1) Cr.P.C., it is clear that any Court may alter or to add any charge at any time before the judgment is pronounced. Since in this case, the impugned order dated 03.06.2019 has been passed without considering the merit of the case, therefore, this Court feels that the impugned order dated 03.06.2019 is not sustainable on this ground at this stage and is liable to be quashed.

8. In view of above, the impugned order dated 03.06.2019 is hereby quashed. The application u/s 482 Cr.P.C. is allowed. The matter is remanded back with the direction to the trial court to decide the application dated 26.03.2019 (34 kha) of the prosecution afresh on merit after giving opportunity of hearing to the parties concerned in accordance with law within a period of 30 days from the date of production of certified copy of this order without being prejudice by any observation made by this Court.

It is made clear that this Court has not expressed any opinion on merit of the case.

Order Date :- 9.7.2019

SKD