Aslam @ Palas S/O Ahmed Sheikh vs State Of Gujarat
2021 Latest Caselaw 2957 Guj

              R/CR.MA/3746/2014                             ORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/CRIMINALMISC.APPLICATIONNO. 3746of 2014

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                        [email protected] PALASS/O AHMEDSHEIKH
                                   Versus
                          STATEOF GUJARAT& 1 other(s)
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Appearance:
MRHB CHAMPAVAT(6149)for the Applicant(s)No. 1
NOTICESERVED(4)for the Respondent(s)No. 2
MS MOXATHAKKAR,ADDITIONALPUBLICPROSECUTOR(2)for the Respondent(s)No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date: 20/02/2021

                                   ORALORDER

1. Heard learned Advocate Mr. H.B. Champavat on behalf of the applicant and learned Additional Public Prosecutor Ms. Moxa Thakkar on behalf of the respondent.

2. Issue RULE forthwith. With consent of the parties, the present application is taken up for final hearing.

3. By way of this application, the applicant has challenged the order dated 20.07.2012 passed by the learned 2nd Additional Senior Civil Judge and Judicial Magistrate First Class, Surat in Sessions Case No.35/2013 pending before the learned Sessions Court at Surat. It is contended by learned Advocate Mr. H.B. Champavat that originally a criminal complaint being C.R. No.II-47/2012 came to be registered against the applicant herein before Udhna Police Station, Surat for the offences punishable under Sections 3 and 6 of the Indian Passport Rules, 1960 (Entry into India) and under Sections 3(1)(2)(a)(g) and 14 of the Foreigners Act, 1946. He submits that the charge-sheet in connection with the said complaint has been submitted before the

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learned Magistrate on 16.03.2012 by the Investigating Officer. He further submits that after filing of the chargesheet, an Application came to be preferred by the Investigating Officer vide Exhibit II before the learned Magistrate on 20.07.2012 inter-alia submitting that in the First Information Report concerned, where originally offences punishable Rule 3 and 6 of the Indian Passport Rules, 1960 (Entry into India) as well as Sections 3(1)(2)(a)(g) as well as Section 14 of the Foreigners Act, 1946 had been mentioned and whereas due to some oversight, offences under Section 14(A) of the Foreigners Act had not been mentioned and therefore, a request had been made that the said Section may be permitted to inserted in the criminal complaint. It is submitted by learned Advocate for the applicant that vide order dated 20.07.2012, the learned Magistrate had granted the said application. Being aggrieved by such an order, the present application is preferred.

4. It is submitted by learned Advocate for the applicant that once the chargesheet is filed, the only stage available for making addition of any particular offence in the chargesheet is at the stage of framing of the charge as per the procedure set out in Section 216 of the Code of Criminal Procedure (hereinafter referred to in short as 'the Code'). Learned Advocate further relies upon the decision of the Apex Court in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in 2014 3 SCC 659. Learned Advocate submits that considering the procedure as envisaged in the said section and considering the ratio laid down by the Apex Court, this Court may set aside the order dated 20.07.2012 passed by the learned Magistrate.

5. As against the same, learned Additional Public Prosecutor opposes this petition and submits that since the Investigating Officer has mentioned that the said Section was not mentioned for the offence punishable in the Criminal Complaint due to oversight, in good faith the learned Magistrate had permitted the same and therefore this Court may not interfere with the impugned order.

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6. Heard learned Advocates for the parties.

7. Section 216 of the Code sets out the procedure whereby the Court can alter or add any charge at any time before the judgment is pronounced. The said section is reproduced hereinbelow for clarity :-

Section 216 in The Code Of Criminal Procedure, 1973 "16. 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."

8. In the judgment of Girish Radhakrishnan Varde (supra), the case before the Supreme Court was on similar facts where the Supreme Court more particularly, at Paragraph No.15 has stated as thus :-

"15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further

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question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet."

9. Considering the law laid down by the Supreme Court more particularly holding that the remedy for a complainant / informant / prosecution incase the investigation authorities have not mentioned an offence under a particular Section of IPC in the chargesheet inspite of such offence being made out is by following the procedure laid down in Section 216 of the Code and not otherwise. Therefore, the Magistrate in the above referred circumstances is permitted to add any an offence under any Section of IPC at the time of framing of the charge and not at the stage of taking cognizance.

10. In the instant case, it appears that the Magistrate has permitted to add the Section in the First Information Report after the charge-sheet had been filed by the Investigating Officer, but not at the stage of framing of the charge, which in the opinion of this Court is not a permissible procedure.

11. Considering the same, the impugned order dated 20.07.2012 is set aside. However, it is open for the prosecution to pray for addition of charge as per the procedure laid down in Section 216 of the Code at the stage of framing of the charge.

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12. In view of the above, the present application stands allowed. Rule made absolute on the above terms. The Sessions case is arising out of a criminal complaint of the year 2012, therefore, the Magistrate concerned as well as the Sessions Court as the case may be, shall make endeavor to ensure that the trial is completed as expeditiously as possible.

Sd/-

(NIKHIL S. KARIEL,J) CAROLINE