Romi Malhotra And Ors. vs State And Ors.
2007 Latest Caselaw 674 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner seeks a quashing order in respect of criminal proceedings initiated pursuant to FIR No. 269/95, which had alleged commission of offences under Section 323/325/34 IPC.

2. The brief facts are that the petitioner along with two other accused was alleged to have been instrumental in the beating up of one Gurdip Singh, the complainant. It is an undisputed fact that the petitioner and Gurdip Singh are close relatives; the first petitioner is the nephew of Gurdip Singh and petitioner Nos. 2 and 3, his sisters. Apparently, during the course of proceedings other co-accused and the complainant, namely, the mother and the driver who is alleged to have been party to the assault upon the complainant, moved an application for compounding; that was granted. The Court on 22.03.00 after considering the materials on record, formed an opinion that charges could framed under Section 323/34 IPC in respect of the petitioners. The Public Prosecutor appears to have subsequently moved an application on 26.10.02 averring that the MLC indicated grievous hurt. That application as well as another application for dropping of the charges so far as the present petitioner were concerned, was moved.

3. The trial Court, by its order dated 28.07.03 allowed the application of the prosecution, for invoking the power under Section 216 Cr.P.C. In course of its order, the Court observed that the Medico Legal Certificate (M.L.C.) which had apparently been overlooked when the charges were framed earlier, had indicated that the injured Gurdip Singh had suffered fracture on his eighth rib. The application of the petitioners was rejected on the ground that dropping of proceedings was not warranted since a cognizable offence was made out. The petitioner carried the order in revision.

4 The revisional Court, in its impugned order dated 04.04.05 held as follows:

There is no dispute about legal provision that the Court is not competent to review its order if it has reached finality. Only clerical mistake can be removed/reviewed. Ld. MM. changed charges from 323 IPC to 325 IPC after taking help from Section 216 of the Cr.P.C. Sub-Section 1 of Section 216 of the Cr.P.C, provides that any court may alter or add to any charge at any time before judgment is pronounced. It came to the notice of Ld. trial Court first time, on the application moved by ld. PP, that the injury on the person of Gurdeep Singh was of grievous nature. Ld. Counsel for the petitioner pointed out that the earlier charge under Section 323/34 IPC must have been framed after going through the record. Ld. counsel has brought to the notice of the Court the opinion of the doctor dated 06.06.95 and 07.06.95 wherein it was observed that there was no bone injuries. The X-ray reports with observation that there is no bone injuries are not of Shri Sharan Singh and other two injured. It appears that ld. MM did not consider the report of Shri Gurdeep Singh placed on record wherein it has been clearly mentioned that bone injuries were found on the person of Shri Gurdeep Singh. Inadvertently this report of the doctor was not considered. Section 216 Cr.P.C. permits that court to amend charge at any time if such material is there on the record. Ld. MM found material to come to the conclusion that prima facie case under Section 325/34 IPC is made out. I see no illegality in the finding of Ld. MM. It does not amount to reviewing his earlier order in view of clear provision of Section 216 of Cr. P.C. which authorise the Court to amend the charge at any time. With these observations the petition is dismissed. Trial Court record be sent there with copy of the order. File of this Court be consigned to the record room.

5. Mr. Tanveer A. Mir, learned Counsel for the petitioners contends that the Courts below erred in framing charges under Section 325 and by invoking of power Section 216 virtually exercised review power, which was plainly impermissible due to a bar enacted under Section 362 of the Criminal Procedure Code. Counsel further contended that the nature of the dispute was such that a compromise entered by the mother and the Complainant, ought to have been taken into consideration. In any case, that is a relevant factor for the Court to consider the appropriateness or otherwise to quash the proceedings by invoking inherent power under under Section 482.

6. Learned Counsel contended that once the Court was seized of the materials and formed the opinion as it did, in the year 2000, there was no jurisdiction in reviewing its order on the basis of the same material. Counsel heavily relied upon the order of the learned trial Court dated 28.07.03 to say that the Court was influenced by a previous omission. This course of action, it was contended, was impermissible, and not in consonance with law.

7. Learned Counsel also contended that police could not have, on the basis of its investigation, sought to press for framing of charges in a case involving non-cognizable offence as Section 323 undoubtedly was. Once the proceedings were allowed to be compounded in respect of some of the accused on the basis that offences were non-cognizable, change of entire basis of such proceedings, as it were by treating, it as a cognizable offence and framing charge under Section 325, prejudiced the petitioner.

8. Learned Counsel for the respondent/state opposed the petition and contended that Section 216 is cast in wide terms; it enables the Court, anytime even before the judgment to re-frame the charges or add to charges provided the procedural safeguards are complied with. In this case, undoubtedly, the materials were indicative of grievous hurt. The Court while framing the charge on the previous occasion had apparently overlooked the material documents. This was merely rectified on the later date when the trial Court permitted the prosecution to move the application and frame charges for the higher offence. No prejudice, it was contended, ensued to the petitioners.

9. The question, which arises were is whether the trial Court and the revisional Court correctly permitted the framing of charges under Section 325, IPC invoking powers under Section 216. Section 216 of the Code of Criminal Procedure reads as follows:

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 additional 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 defense 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 sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

10. As is evident, any Court is empowered to alter or add to any charge at any time before judgment is pronounced. Section 216(3) indicates the procedural safeguards in that if the alteration or addition to the charge is such that the proceeding immediately with the trial is unlikely in the opinion of the Court to prejudice the accused in his defense or the prosecutor in the conduct of the case, the Court can proceed with the trial as if altered or added charge had been the original charge. However, the trial can be adjourned presumably to permit the accused to apply under Section 311 or such other provisions as may be available, to effectuate the defense, in the light of the fresh charges. Section 216(4) empowers directing fresh trial.

11. It is no doubt well-settled that a criminal Court does not have jurisdiction to review its order. There is an express bar to that extent under Section 362, which enables only correction of clerical and arithmetic errors. The question here is not as to whether the Court reviewed its order. There can be myraid situations where after the framing of the charge, even on the basis of existing materials' or those which may subsequently be available to the trial Court by way of evidence, the Court's attention may be drawn to circumstances, which escaped its notice at the earlier stage of framing of charges. Section 216 has been enacted to cater to such eventualities. In this case, apparently that is precisely what happened. The Court, while framing the charge, took into account only X-ray of the injured; however, the opinion of the doctor, though available, was not considered. The opinion mentioned that injuries on the eighth rib were found on the person of Gurdip Singh. Having regard to the nature of the proceedings pending in this case, I am of the opinion that no prejudice was caused warranting interference under Section 482, on this score.

12. As far as the question of the trial Court proceeding to frame charges in respect of non-cognizable offences where the police had no jurisdiction and the ensuing prejudice is concerned, I am of the considered opinion that such argument is un-merited. The Court, had no doubt permitted some of the accused to compound the evidence at a stage when the allegations indicated that the injuries were not grievous. Later, the Court formed an opinion that invoking under Section 216 was necessary, and framed the charges, under Section 325, a cognizable offence. That was on the basis of existing materials. This issue is not res integra; in State of Bihar v. Chandra Bhushan Singh 2001(2) SCC, 241, the Supreme Court held that:

Section 2(d) of the Code defines the complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence but does not include a police report. Explanation to clause(d) to Section 2 of the Code Provides:

Explaination.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

Section 2(d) of the Code encompasses a police report also as a deemed complaint if the matter is investigated by a police officer regarding the case involving commission of a non-cognizable offence. In such a case, the report submitted by a police officer cannot be held to be without jurisdiction merely because proceedings were instituted by the police officer after investigation, when he had no power to investigate. Therefore, the petitioner's submission in this regard are also legally unfounded.

13. The petitioners and the complainant are undoubtedly relatives. Apparently a compromise was arrived at between the mother and the son. Having regard to the circumstance that a complete compromise was not arrived at, further that other litigation is pending, and importantly charges have been framed after due investigation, I am of the opinion that invoking the inherent power of this Court under Section 482 would not be justified.

The petition is accordingly dismissed without any order as to costs.