Nazim Khan And Anr. vs State
2000 Latest Caselaw 861 Del

JUDGMENT

R.S. Sodhi, J.

1. Admit.

2. This Criminal Misc. (Main) 2679 of 2000 is directed against the judgment and order of the Additional Sessions Judge who by his order dated 23.2.2000, on a revision petition filed by the complainant/witness, refused to exercise his powers and order alteration of charge from Section 325 IPC to Sections 326 or 307 IPC, as prayed for by the petitioners herein.

3. From the record before me, it appears that during the fag end of the trial when the matter was fixed for final arguments, the complainant, who are also witnesses in the case arising out of FIR No. 228/92, Police Station, Seelampur, under Sections 325/34 IPC, had moved an application for amending the charge. It was their case that a perusal of the MLC would show that a charge is sustainable under Section 326 or Section 307 IPC and, therefore, the charge should be amended. The learned Metropolitan- Magistrate by his order dated 18.1.2000 came to the conclusion that the matter has been fixed for final arguments and that the application for alteration of a charge does not merit any consideration and, therefore, dismissed the same fixing the case for final arguments for 15.2.2000. It was this order that was challenged by the complainant/witness before the Additional Sessions Judge, who held that the only short question raised by the petitioners is that the learned Metropolitan Magistrate should alter the charge from Section 325 to Sections 326/307 IPC. The learned Additional Sessions Judge, after going through the petition, returned a finding that the case is at a final stage and that a the revision petition has been filed without the consent of the learned Additional Public Prosecutor and, therefore, the complainants, who are also a witnesses in the case, have no locus standi to take part in the proceedings in the manner they have done. Furtharmore, the case being at final stage, it would not be proper to consider altering the charge and, therefore, the learned Additional Sessions Judge declined to interfere both on the grounds of maintainability and impropriety. The petitioners, therefore, being aggrieved of the order dated 23.2.2000 have filed the instant petition.

4. It is the case of the petitioners before me that the complainant could always maintain a revision petition in the absence of a State case even though the State is not aggrieved of the proceedings. It is undoubtedly true that this Court has jurisdiction to entertain a petition on behalf of a complainant under Section 482 of the Code of Criminal Procedure, which power has been upheld by the Supreme Court in the case of Kirshnan v. Kirshnaveni and Anr., 1997 (1) RCR 724 where the Supreme Court has held that:

"The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.".

5. The inherent powers of the High Court are not conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional application to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen under Sub-section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not be defined the word "person". However, under Section 11 of the IPC, "person" includes any Company or Association or body of persons, whether incorporated or not. The word ''person" would, therefore, include not only the natural person but also judicial person in whatever from designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word "person" for the purpose of limiting its rights to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. The prohibition under Section 397(3) on revisional power given to the High Court would not apply where the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code.

6. In the present case, the petitioners, who are witnesses/complainant, at the fag end of the trial seek alteration of the charge. Whatever may be their locus standi to maintain this petition, I am of the view that the courts below have wisely not exercised their powers under Section 216 of the Code of Criminal Procedure. It is not desirable, although not prohibited, that the charges be altered at the final stage which can undoubtedly cause prejudice to the accused and/or may require the trial to proceed de novo. In any event, having brought to the notice of the Court that a charge may need alteration, it is for the Court to decide for itself keeping in view the mandate of Section 216 of the Code of Criminal Procedure whether alteration of a charge is necessary in the facts and circumstances of each case. In the instant case, I do not find any ground nor reason that the charge should be altered at this final juncture. I, therefore, uphold the order of the learned Additional Sessions Judge dated 23.2.2000 and dismiss this Criminal Misc. (Main) Petition No. 2679 of 2000.