Sabujan Khatoon @ Sabujan Ansari @ ... vs The State Of Jharkhand
2023 Latest Caselaw 2525 Jhar

                                           1                      Cr.M.P. No.2868 of 2022




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 2868 of 2022


            1. Sabujan Khatoon @ Sabujan Ansari @ Sabjan Khatoon @ Subejan
                 Khatoon @ Shabuja Khatoon, aged about 43 years, wife of Anwar
                 Ansari, resident of Near Jama Masjid, Betul Khurd, Betulkala, P.O.
                 +P.S. Gola, Dist. Ramgarh
            2. Anwar Ansari, son of Dilawar Hussain, aged about 50 years
                 resident of Near Jama Masjid, Betul Khurd, Betulkala, P.O. +P.S.
                 Gola, Dist. Ramgarh
                                                    ....            Petitioners


                                         Versus

                 The State of Jharkhand
                                               ....              Opp. Party



                                         PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioners : Mr. Pratik Sen, Advocate For the State : Mr. P.D. Agrawal, Spl. P.P.

.....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

for quashing the order dated 25.06.2022 by which the petition

dated 20.01.2022 under Section 216 of Code of Criminal Procedure

was allowed and a direction was given to the petitioners and the

co-accused persons to remain physically present on the next date

for framing of charge for the offence punishable under Section

304B/34 of Indian Penal Code and alternatively the charge under

Section 302/34 of Indian Penal Code in connection with S.T. Case

No. 115 of 2021 arising out of Gola P.S. Case No. 130 of 2020,

corresponding to G.R. No. 667 of 2021 registered under Sections

304B/34 of Indian Penal Code.

3. The brief fact of the case is that the petitioners being the father-

in-law and mother-in-law of the deceased- Rasiya Praween in

furtherance of common intention with the co-accused persons

have committed dowry death of Rasiya Praween.

4. The FIR was registered under Sections 304B/34 of Indian Penal

Code and charge sheet was submitted inter alia against the

petitioners for having committed the offence punishable under

Sections 304 B/34 of Indian Penal Code.

5. The learned Additional Sessions Judge-I-cum-Special Judge,

FTC, Ramgarh framed the charge for the offence punishable

under Section 304B/34 of Indian Penal Code on 23.11.2021.

Thereafter, the learned Addl. P.P. filed the petition under Section

216 of Code of Criminal Procedure with a prayer for amending

the charge and vide order dated 25.06.2022, the learned

Additional Sessions Judge-I-cum-Special Judge, FTC, Ramgarh

allowed the said petition filed by the learned Addl. P.P. due to

injury found in the body of deceased and statement of witnesses

recorded under Section 161 Cr.P.C. and the learned Additional

Sessions Judge-I-cum-Special Judge, FTC, Ramgarh was of the

opinion that charge under Section 302 of Indian Penal Code

should also have been framed against all the three accused

persons including the petitioners and directed the accused

persons of the case including the petitioners to remain physically

present for framing of charge for the offence punishable under

Section 304B/34 of Indian Penal Code and also alternative charge

under Section 302/34 of Indian Penal Code.

6. Learned counsel for the petitioners relied upon the judgment of

Hon'ble Supreme Court of India in the case of P. Kartikalakshmi

vs. Sri Ganesh & Anr. reported in (2017) 3 SCC 347, paragraph

no. 7 and 8 of which reads as under:-

7. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 CrPC is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised.

8. In such circumstances, when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC.

Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for

protraction of the proceedings which ought not to have been allowed by the court below. (Emphasis supplied)

and submits that the learned Additional Sessions Judge-I-cum-

Special Judge, FTC, Ramgarh ought not to have altered the charge

at the instance of the learned Addl. P.P. and the learned court

below having done the same at the instance of the learned Addl.

P.P. which is an illegality. Hence, order dated 25.06.2022 by which

the petition dated 20.01.2022 under Section 216 of Code of

Criminal Procedure was allowed in connection with S.T. Case No.

115 of 2021 arising out of Gola P.S. Case No. 130 of 2020,

corresponding to G.R. No. 667 of 2021 be quashed and set aside.

7. Learned Special Public Prosecutor on the other hand vehemently

opposes the prayer for quashing the order dated 25.06.2022 by

which the petition dated 20.01.2022 under Section 216 of Code of

Criminal Procedure was allowed in connection with S.T. Case No.

115 of 2021 arising out of Gola P.S. Case No. 130 of 2020,

corresponding to G.R. No. 667 of 2021 and submits that the order

is in consonance with the judgment passed by the Hon'ble

Supreme Court of India wherein the Hon'ble Supreme Court of

India has opined that in all cases where the offence punishable

under Section 304B of Indian Penal Code is involved, alternative

charge for the offence punishable under Section 302 of Indian

Penal Code must be framed by the courts. Hence, the order being

in terms of the said Judgment of Hon'ble Supreme Court of India,

there is no illegality in the said order. Hence, the order dated

25.06.2022 by which the petition dated 20.01.2022 under Section

216 of Code of Criminal Procedure was allowed in connection

with S.T. Case No. 115 of 2021 arising out of Gola P.S. Case No.

130 of 2020, corresponding to G.R. No. 667 of 2021 does not

warrant any interference by this Court even if the procedure may

not be the correct one, by passing such an order on the prayer of

the Additional Public Prosecutor. Hence, it is submitted that this

criminal miscellaneous petition being without any merit be

dismissed.

8. Having heard the submissions made at the Bar and after going

through the materials in the record, it is pertinent to mention here

that the Hon'ble Supreme Court of India in the case of Jasvinder

Saini & Ors vs. State (Govt. of NCT of Delhi) reported in (2013)

7 SCC 256, paragraph no. 15 of which reads as under:-

15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established.

The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149

: AIR 2011 SC 568] . The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] , but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court. (Emphasis supplied)

wherein, the Hon'ble Supreme Court of India has clarified the

judgment passed by it in the case of Rajbir @ Raju & Anr. vs.

State of Haryana reported in (2010) 15 SCC 116 and has opined

that if there is evidence whether direct or circumstantial to prima

facie support a charge under Section 302 of Indian Penal Code,

then such charge under section 302 of the Indian Penal Code shall

be the main charge is not the alternative charge. In view of the

principle of law settled in the case of Jasvinder Saini & Ors vs.

State (Govt. of NCT of Delhi) (supra); the learned trial court once

it found that the materials in the record is sufficient to prima facie,

show an offence punishable under section 302 of the Indian Penal

Code and the trial court ought to have framed the charge of

murder punishable under Section 302 of Indian Penal Code as the

main charge and not an alternative charge as wrongly been

framed by the learned trial court in the impugned order. It is

needless to mention, that the trial court committed an error in

passing such an order of alteration of charge on the prayer of the

Additional Public Prosecutor under section 216 of the Code of

Criminal Procedure; as the said section 216 do know permit

exercise of power vested upon the trial court, to alter the charge

framed, at the instance or prayer of anybody but only and solely

when the trial court itself is of the opinion that alteration of the

charge is necessary, in view of the sufficient material available

before it, justifying alteration of the charge.

9. Now coming of to the facts of the case, the learned Additional

Sessions Judge-I-cum-Special Judge, FTC, Ramgarh after perusing

the materials in the record, has opined that the charge under

Section 302 of Indian Penal Code should have been framed but

instead of framing charge under Section 302/34 of Indian Penal

Code as the main charge, has ordered that the same will be an

alternative charge which is not in consonance with the judgment

of the Hon'ble Supreme Court of India in the case of Jasvinder

Saini & Ors vs. State (Govt. of NCT of Delhi) (supra).

10. Accordingly, the order dated 25.06.2022 by which the petition

dated 20.01.2022 under Section 216 of Code of Criminal Procedure

was allowed in connection with S.T. Case No. 115 of 2021 arising

out of Gola P.S. Case No. 130 of 2020, corresponding to G.R. No.

667 of 2021 is set aside and the matter is remitted back to the

learned court concerned for passing fresh order and to re-examine

the question of framing the charge under Section 302/34 of Indian

Penal Code against the accused persons and to pass appropriate

order upon the materials placed before it and by application of its

own mind and without being influenced by the said petition

dated 20.01.2022. If the learned trial court comes to the conclusion

that there is sufficient material for altering the charge to include

the charge under section 302 of the Indian Penal Code, then it

must frame the charge for the offence punishable under Section

302/34 of Indian Penal Code as the main charge and not as

alternative charge and the charge punishable under section 304B

of the Indian Penal Code could be the alternative charge.

11. The criminal miscellaneous petition is disposed of accordingly.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 2nd August, 2023 AFR/Sonu-Gunjan/-