Delhi High Court

Jasvindedr Saini & Ors vs State on 13 October, 2011

Author: Mukta Gupta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+               W.P.(CRL) No. 413/2011 & Crl.M.A. 3645/2011 (stay)

%                                              Reserved on: 22nd September, 2011

                                               Decided on: 13th October, 2011

JASVINDEDR SAINI & ORS                                        ..... Petitioners
                  Through:                  Mr. R.N. Sharma, Mr. Manish Kr.
                                            Singh, Advs.

                        versus

STATE                                                          ..... Respondents
                                 Through:   Mr. Mukesh Gupta, APP for State with
                                            SI Pardeep Dahiya, PS Nangloi.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may            Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported              Yes
   in the Digest?

MUKTA GUPTA, J.

1. FIR No. 765/2007 was registered against the Petitioners for offences

punishable under Section 498A/304B/406/34 IPC on the death of one Ms.

Chandni on a complaint lodged by her father Shri Ajay Gautam. After

completion of investigation charge-sheet was filed for offences punishable

under Section 498A/304B/406/34 IPC against Petitioner Nos.1 to 4.

Subsequently, on the formal arrest of Petitioner Nos. 5 to 8 supplementary

charge-sheet was filed for offences under Section 498A/304B/406/302 IPC.

The matter was heard for framing of charge, and vide order dated 18th March,

2009 Learned Additional Sessions Judge held that there was prima facie

evidence of offences punishable under Section 498A/304B/34 IPC against the

Petitioners and thus directed framing of the charges. Vide this order the

Learned Additional Sessions Judge also held that there was no material

evidence for framing of charge under Section 302 IPC against the accused

persons. The trial continued and as many as 18 witnesses were examined. On

22nd November, 2010 the Hon'ble Supreme Court in Rajbir @ Raju & Anr.

Vs. State of Haryana SLP No. 9507/2010 directed as under:

"We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women."

2. In view of these directions of the Hon'ble Supreme Court vide the

impugned order dated 23rd February, 2011 after hearing the arguments on the

issue of amendment of charge, learned Additional Sessions Judge framed the

additional charge under Section 302 IPC against the Petitioners. This order is

impugned in the present petition.

3. Learned counsel for the Petitioner contends that the directions dated

22nd November, 2010 of the Hon'ble Supreme Court were non est in law and

the additional charge under Section 302 IPC could not have been framed

without following due process of law. It is contended that the Learned Trial

Court had no jurisdiction to review its earlier order and amend the charge by

adding Section 302 IPC especially when it had returned a finding vide order

dated 18th March, 2009 that there was no material for framing of charge under

Section 302 IPC against the accused persons and the order passed is contrary

to the principles of natural justice. The order dated 18th March, 2009 was not

challenged by the State before the High Court. Further the charge was

amended at the fag end of the trial, thus causing prejudice to the Petitioner. It

is further contended that amendment of the charge could have taken place

under Section 216 Cr.P.C. only if during trial additional material comes on

record against the accused persons.

4. Learned APP on the other contends that Section 216 Cr.P.C.

contemplates alteration and amendment of the charge at any stage of the trial

and additional evidence being available during trial is no pre requisite, though

the same may be one of the grounds to alter the charge. The Learned Trial

Court has followed the due procedure, heard the Petitioners before alteration

of charge and thereafter amended it. No prejudice has been caused to the

Petitioners. Further in view of the opinion of the Doctor who conducted the

post-mortem a charge under Section 302 IPC was clearly warranted. There

being no infirmity in the impugned order, the petition is liable to be dismissed.

5. I have heard learned counsels for the parties. In the present case the

facts which are relevant to be noted are that the Autopsy Surgeon in the post-

mortem report opined the cause of death as "Cranio Cerebral Damage"

consequent upon blunt force impact. It was also opined that possibility of

knock down by other party in this case cannot be ruled out at this stage. Thus,

the Autopsy Surgeon did not rule out the possibility of homicidal death.

6. The Hon'ble Supreme Court in Rajbir @ Raju (supra) while dealing

with a special leave to appeal under Section 304B IPC directed all trial Courts

in India to ordinarily add Section 302 IPC to the charge of Section 304B IPC

so that death sentences can be imposed in such heinous and barbarous crime

against women. The contention of the learned counsel for the Petitioner that

the said direction is non est in law is wholly fallacious. Directions issued by

the Hon'ble Supreme Court are binding on all the subordinate Courts in the

country and they are bound to follow it. However, at this stage it would be

appropriate to note that the charge of Section 302 IPC can only be added in

cases where unnatural death is homicidal in nature. The import of the

directions of the Supreme Court cannot be read to mean that even in a case

where the unnatural death is suicidal in nature and there is no element of

homicidal death, Section 302 IPC should be added. A perusal of the Autopsy

Surgeon's report in the present case shows that there was prima facie evidence

on record to show that the death of the deceased could be homicidal in nature.

That being the position the order dated 18 th March, 2009 noting that prima

facie there was no material for framing of charge under Section 302 IPC

against the accused persons is fallacious.

7. The contention of the learned counsel that the impugned order is

violative of principles of natural justice is also not tenable. A perusal of the

impugned order shows that before passing the same the Learned Additional

Sessions Judge heard the Petitioners and the State. It is only after hearing

their arguments that the order was passed. In the present case undoubtedly no

charge was framed against the Petitioners for offences under Section 302 IPC

and thus they were deemed to be discharged of the said offences. Though the

Criminal Courts have no power to review but Section 216 Cr.P.C is in the

nature of an exception to that general principle. Section 216 & 217 Cr.P.C.

provides as under:

"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 section 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.

217. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed-

(a) To recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;