Bharat Uttamrao Rajurkar And ... vs The State Of Maharashtra Thr. Pso ...
2018 Latest Caselaw 354 Bom

Cri.W.P. No.1232/2017                         1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH, NAGPUR

              CRIMINAL WRIT PETITION NO.1232 OF 2017

Petitioners              : 1] Bharat Uttam Rajurkar,
                              Age 52 years, Occupation : Cultivator,
                              R/o Shewati Jahagir, District Amravati.

                                2] Mahadev Uttamrao Rajurkar,
                                   Age 66 years, Occupation : Retired.

                                3] Sachin Mahadevrao Rajurkar,
                                   Age 29 years, Occupation : Business.

                                   Both r/o Rathi Nagar, Amravati.

                                   -- Versus --

Respondent               :         The State of Maharashtra,
                                   Through P.S.O. Of P.S. Nandgaonpeth,
                                   District Amravati.

         =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
              Shri P.W. Mirza, Advocate for the Petitioners.
          Shri C.A. Lokhande, A.P.P. for the Respondent/State.
         =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM : S.B. SHUKRE, J.

                         DATE         : 12th JANUARY, 2018.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

02] This petition questions the legality and correctness of

the orders passed by the Courts below rejecting the petitioners'

application filed under Section 216 of the Code of Criminal

Procedure (for short, 'Cr.P.C.') for alteration of the charge.

03] The first order of rejection came from the trial Court,

which is the Court of Judicial Magistrate First Class, Court No.8,

Amravati, on 21/03/2016. The second order of rejection was in

Criminal Revision No.42/2016 passed on 22/11/2017 by the learned

Sessions Judge, Amravati.

04] There have been three grounds taken for pressing the

prayer for alteration of the charge. The first ground is that the

charge, as framed, is defective and the defect is the result of non-

compliance with the mandatory provision of law under Section 239

of Cr.P.C. requiring the Court framing the charge to give an

opportunity of hearing to the accused before the charge is framed.

The second ground is that at least an offence of extortion

punishable under Section 386 of Indian Penal Code is not made out

in any manner so as to enable the Court to try the accused on such

charge. The third ground relates to making a hotchpotch of several

distinct offences committed by different accused persons at

different places, different points of time thereby violating the

mandate of Sections 212, 218, 219, 220 and 223 of Cr.P.C.

05] Shri P.W. Mirza, learned Counsel for the petitioners to

justify the grounds of challenge, has taken me through the relevant

paragraphs of the impugned orders. Shri C.A. Lokhande, learned

Additional Public Prosecutor for the State opposing the argument of

learned Counsel for the petitioners submits that even if some errors

are there in framing of the charge, no prejudice is going to be

caused to the petitioners, as ultimately they would be getting

adequate opportunity to prove their defence and show as to how

the charge framed against them is without any substance.

06] To deal with first objection, one has to consider the

provisions of Sections 239 and 240 of Cr.P.C., this being a warrant

trial case. These provisions require the Magistrate to give the

prosecution and the accused an opportunity of being heard before

the charge is framed. Similar provisions are to be found under

Sections 227 and 228 of Cr.P.C., which apply to trial of session case

under Chapter XVIII of Cr.P.C. They oblige the Sessions Court to

hear the submissions of the accused and the prosecution before

the charge is framed. In interpreting these sections, the learned

single judges of this Court, in at least two cases, have taken a view

that the procedure prescribed in these sections is not an empty

formality and a Sessions Judge is bound to comply with these

provisions of law in the letter and spirit. A useful reference in this

regard may be made to the cases of Ambadas Kashirao Kharad and

others vs. State of Maharashtra - [2007(1) Mh.L.J. (Cri.) 517] and

Shri Hitesh Kishorechand Raithatha & Ors. vs. State of Maharashtra

& Anr. - [2008 ALL MR (Cri) 3445].

07] The order passed by the learned Magistrate dated

21/03/2016 discloses that the learned Magistrate " prima facie

presumed" (paragraph 11 of the oder and page 84 of the paper-

book of the writ petition) that accused persons were represented by

a lawyer and, therefore, his learned predecessor must have framed

the charge after hearing of the accused persons and their lawyers.

I do not understand the logic behind such an observation. There

cannot be any "prima facie presumption" about the predecessor of

the learned Magistrate having heard the accused persons before

framing of the charge only because on the date on which the

charge was framed, the accused persons represented through

lawyers were present in the Court. Personal presence of accused is

one thing and hearing them is another. To record a finding that the

accused were heard before the charge was framed, one needs to

satisfy oneself from the notings made in the order-sheet of the case

and one cannot do so through presumptions, suppositions and

assumptions as the learned Magistrate has done in this case. He

rather ought to have satisfied himself by going through the record

as to whether or not his predecessor indeed gave an opportunity of

hearing to the accused persons. If there was no noting made in the

order-sheet or the Roznama in this regard, there was no question of

drawing of any "presumption" much less " prima facie

presumption". After all, framing of charge is a serious business.

When Sections 239 and 240 of Cr.P.C. mandate that charge must be

framed after giving an opportunity of hearing to the accused, the

mandate must be followed realistically and not presumptively. The

view taken in the cases of Ambadas and Hitesh, cited earlier,

though in respect of scope and applicability of Sections 227 and

228 of Cr.P.C. would, in my considered opinion, cover the issue of

right of accused to be heard before framing of charge in terms of

Sections 239 and 240 of Cr.P.C., as well, as all these provisions, at

their base, are similar.

08] The impugned orders clearly show that no such

opportunity of being heard was ever granted to the petitioners

before framing of the charge and, therefore, for this reason alone,

the charge, as framed, against the petitioners deserves to be

quashed and set aside.

09] Apart from above, I find that the charge framed for an

offence punishable under Section 386 of the Indian Penal Code could

not have been framed in the present case, because admittedly no

money has been parted with. Even the learned Sessions Judge in the

impugned order has found it to be so. But the learned Sessions Judge

refrained from passing any order of withdrawal of the charge on the

ground that Section 216 of Cr.P.C. is only about "alteration and

addition" of any offence to the charge already framed and not about

withdrawal of or removal of an offence from the charge framed.

10] I think, the learned Sessions Judge has not considered the

inherent contradictions in such a finding and the futility of holding a

trial for a charge whose fate is a forgone conclusion. When it is found

and indeed has been found by him in no uncertain words that offence

under Section 386 of the Indian Penal Code is not made out, there

should be no warrant to lay a charge on a count about which the Court

has already made up it's mind against. In the case of Isaac Isanga

Musumba & Ors. vs. State of Maharashtra & Ors. - [2013(7) SCALE

569], the Hon'ble Apex Court has held that unless property is

delivered to the accused person pursuant to the threat, no offence of

extortion is made out. In fact, as stated earlier, the Sessions Court

entertains no doubt about the offence of extortion punishable under

Section 386 of the Indian Penal Code having been not made out. If

this is so, any trial on this count of charge would only be a futility and

must be avoided.

11] Of course, the learned Sessions Judge is of the view that

withdrawal or removal of one count from the charge, which is for an

offence punishable under Section 386 of Indian Penal Code, is not

permissible as not falling within the scope and ambit of any power of

the Court under Section 216 of Cr.P.C. The view, however, is not

sound, rather it goes against the plain meaning of the expression

"after or add to any charge" used in Section 216 of Cr.P.C. and also the

legislative intent.

12] Speaking about legislative intent, I may say, if the words

"any court may alter or add to any charge" are to be understood as

only enabling the Court to change the form or nature of one offence so

as to convert it into another offence or make addition of an offence,

the understanding would agitate against the intention of the

legislature. The intention of the legislature is that there must be a

clear notice given to the accused of the basic facts constituting

offence alleged against him so that he can defend himself effectively,

that there is no delay in trial and that harassment of the accused

for something which he did not do is avoided. This very intention of

the legislature would be frustrated if the accused is made to stand

trial on a charge which the court knows to be baseless.

13] Apart from what is said earlier, I would point out that the

expression "alter or add" does not plainly convey that it excludes

deletion or removal of one count of charge from out of several heads

of charge. Under Section 2(b) of Cr.P.C., charge has been defined as

including any head of charge when the charge contains more heads

than one. Section 216 of Cr.P.C. invests the Court with the power to

alter or add any charge at any time before the judgment is

pronounced. It is significant to note here that the legislature has used

singular word "charge" and not plural of it which is "charges". So

according to the definition of the charge, a charge may contain just

one offence or several offences. When the charge contains more than

one offence, withdrawal of one of the offences from the charge so

framed would not amount to withdrawal of the charge itself, but would

only change the nature or form or appearance of the charge.

Whenever, there is change in the form or appearance, it is termed as

alteration and that is also the meaning of the word "alter" in its plain

and grammatical sense. The New International Webster's

Comprehensive Dictionary of the English Language (2004 Edition) ,

defines the word 'alter', at Page No.43, as follows :

1. To cause to be different; change; modify; transform.

2. To castrate or spay.

3. To become different; change, as in character or appearance.

This definition would sufficiently indicate that the word

"alter" includes anything in the nature of removal or withdrawal,

which ultimately amounts to changing the character or form of the

substance from which something is removed or withdrawn, in the

context of the power of the Court to alter the charge under Section

216 of Cr.P.C.

14] In the present case, what has been sought by the

petitioners, is withdrawal of the charge framed against them for the

offence punishable under Section 386 of the Indian Penal Code.

Admittedly, this is the case wherein the charge includes more

offences than one. So, if one of the offences, which is not prima

facie made out, is withdrawn from the several heads of charge as in

the present case, it would not amount to withdrawal of the charge

itself, rather it would amount to change of form or character or

appearance of the charge. It would have been a different matter

had the legislature used the expression "charges" required to be

framed against the accused persons. The legislature has used a

singular expression "charge" and has defined this singular

expression as capable of containing one or more than one offence.

Therefore, removal or withdrawal of one of the offences, when the

charge contains several offences, would not amount to withdrawal

of the charge itself and would only amount to alteration of the

charge through exercise of excision or cutting or spaying some of

the offences not prima facie made out against the accused

persons. The view taken by the learned Sessions Judge is obviously

against the intention of the legislature as well as the plain and

grammatical meaning conveyed by the expression "add or alter to

any charge" used in Section 216(1) of Cr.P.C. and so cannot stand

the scrutiny of law.

15] About the third ground of objection, I would again say, it is

with substance. I find that some of the offences charged against

the petitioners are joint in nature and, prima facie, require

reframing, as apparently some of the acts have been committed at

different places and different times not by the same accused

persons but by different accused persons. Such joint framing of the

charge, in the nature of a hotchpotch, has amounted to misjoinder

of some of the heads of the charge. On this ground also, the

impugned orders cannot be sustained in the eye of law.

16] In the circumstances, I find that this writ petition

deserves to be allowed and it is allowed accordingly.

i.The charge as framed against the petitioners stands

quashed and set aside.

ii.The matter is remitted back to the learned trial Judge for

framing of charge afresh against the petitioners after

giving reasonable opportunity of hearing to both sides,

in accordance with law.

iii.Rule is made absolute in the above terms.

(S.B. Shukre, J.)

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