Allahabad High Court
Jameel Ahmad vs State Of U.P. And 2 Others on 3 August, 2023
Bench: Surendra Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:155526
Court No. - 32
Case :- MATTERS UNDER ARTICLE 227 No. - 7098 of 2023
Petitioner :- Jameel Ahmad
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Sunil Kumar Upadhyay
Counsel for Respondent :- G.A.
Hon'ble Surendra Singh-I,J.
1. Heard Shri Sunil Kumar Upadhyay, learned counsel for the petitioner, learned A.G.A. for the State and perused the material available on record.
2. The present petition under Article 227 of the Constitution has been preferred against the order dated 23.08.2022 passed by the Chief Judicial Magistrate, Rampur in Criminal Case No. 7562 of 2021, State vs. Tashveer Ahmad and others, arising out of Case Crime No. 208 of 2021, under Sections 147, 148, 323, 325, 506 I.P.C., Police Station Azeem Nagar, District Rampur and order dated 23.03.2023 passed by the learned Sessions Judge, Rampur in Criminal Revision No. nil of 2022, Misc. Case No. 45 of 2023, Jameel vs. State of U.P. and others.
3. Admit.
4. The petitioner, Jameel Ahmad is the informant in Case Crime No. 208 of 2021. By the impugned order dated 23.08.2022 the Chief Judicial Magistrate, Rampur has rejected the application dated 01.06.2022 filed by the informant for adding Section 376 I.P.C. against the accused. Thereafter, the informant preferred a revision against the order dated 23.08.2022 before the Sessions Judge, Rampur which was also rejected vide order dated 23.03.2023 by the Sessions Judge, Rampur on the ground that revision has been filed after delay of 120 days and the delay has not been properly explained by the revisionist.
5. It has been submitted on behalf of the applicant that in the FIR relating to the criminal case, informant has mentioned that the accused forcibly carried away his sister Naseem Jahan to their house and after two hours she was recovered by the police in unconscious state. It has also been submitted that the victim has stated in her statement under Section 164 Cr.P.C. that accused Tanveer and Sakeel had committed rape on her. The Investigating Officer under the influence of the accused and ignoring the evidence has illegally omitted Section 376 I.P.C. in the charge sheet. It is submitted by the learned counsel for the petitioner that since the Investigating Officer had illegally omitted serious offence under Section 376 I.P.C. from the charge-sheet, the Revisional Court should have condoned delay in filing the revision and decide his revision on merit.
6. From perusal of the order dated 23.08.2022 of the Chief Judicial Magistrate, Rampur, it transpires that the Trial Court had rejected the application dated 01.12.2021 of the informant on the ground that the Court had already taken cognizance of the offence under Sections 147, 148, 323, 325, 506 I.P.C. against the accused on therefor he cannot revise his order and again take cognizance against the accused under Section 376 I.P.C.
7. Learned A.G.A. appearing for the State has admitted that the Magistrate had jurisdiction to add additional sections while framing charge against the accused.
8. Section 323 Cr.P.C. provides that if after commencement of inquiry or trial the Magistrate thinks that the case ought to be tried by Court of Sessions, he shall commit the case to such Court. The Magistrate can exercise this power any time before signing of the judgment. The provisions of Section 323 Cr.P.C. are reproduced herein below:
"323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained 1 and thereupon the provisions of Chapter XVIII shall apply to the commitment so made]."
9. Apart from the above, the informant and the accused both have right to advance arguments at the time of framing of charge and to argue that the charge-sheet has not been submitted under proper sections and charges should be enhanced or reduced against the accused. Thus, informant also had right to submit his argument for adding additional sections at the time of framing of charge. Section 216 Cr.P.C. provides that all Courts have power to alter or add any charge before any time the judgment is pronounced. Section 216 Cr.P.C. is as follows:
"216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in 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 for a prosecution on the same facts as those on which the altered or added charge is founded."
10. In view of the above statutory provisions and the facts and circumstances of the case, the impugned order dated 23.08.2022 passed by the Chief Judicial Magistrate, Rampur in Criminal Case No. 7562 of 2021, State vs. Tashveer Ahmad and others, arising out of Case Crime No. 208 of 2021, under Sections 147, 148, 323, 325, 506 I.P.C., Police Station Azeem Nagar, District Rampur and order dated 23.03.2023 passed by the learned Sessions Judge, Rampur in Criminal Revision No. nil of 2022, Misc. Case No. 45 of 2023, Jameel vs. State of U.P. and others, are quashed.
11. It is provided that the informant may advance his arguments about addition of sections in the charge. The Magistrate concerned shall provide the opportunity for hearing to the informant and the defence and pass order in accordance with law. In case, he finds that the case is one triable by Sessions, he may pass suitable orders under Section 323 Cr.P.C.
12. In view of the above the present petition is disposed of.
13. It is made clear that the Court has not made any observation on the merit of the case and the Magistrate shall pass orders uninfluenced by anything said in this order, according to the evidence on record and in accordance with law.
Order Date :- 3.8.2023
Brijesh Maurya
