Brajendra Singh Rawat vs The State Of Madhya Pradesh
2021 Latest Caselaw 8435 MP

HIGH COURT OF MADHYA PRADESH Cr.R. No. 2598/2021 (Brajendra Singh Rawat vs State of M.P.) Gwalior, Dated : 08.12.2021

Shri Pratip Visoriya, learned counsel for the petitioner.

Shri Abhishek Sharma, learned Panel Lawyer for the State.

Present criminal revision under Section 397/401 of CrPC arising out of order dated 03/9/2021 passed by the First Additional Sessions Judge, District Datia in Sessions Trial No.54/2021, whereby charges under Sections 333 and 353 of IPC and Section 25 (1-B)(a) of Arms Act have been framed against the petitioner.

It is alleged that the First Information Report was registered against the present petitioner for offences under the Arms Act. After completion of investigation, the charge-sheet was filed against the petitioner. During the course of recording of statements of witnesses, the JMFC arrived at the conclusion that the offences under Sections 333 and 353 of IPC are also made out against the present petitioner, therefore, the aforesaid offences were enhanced and the matter was committed to the Court of Sessions as the same are to be tried by the Court of Sessions. After the matter was taken up by the Sessions Court for consideration, then fresh charges were framed by the Sessions Court and the summons were issued for production of witnesses.

It is argued by learned counsel for the petitioner that once the statements of the witnesses have already been recorded by the JMFC, then there was no requirement for the Sessions Court to direct for recalling the entire witnesses. Only the witnesses are required to be examined to the extent of additional charges which are to be framed by the Sessions Court. He has placed reliance upon the provisions of Section 217 of CrPC to substantiate the arguments. It is further submitted that from the perusal of the aforesaid provisions, it is apparently clear that the subsequent charges which have been framed were only required to be considered by the Sessions Court, therefore, the order impugned is per se illegal.

Per contra, learned counsel appearing for the State has opposed the revision stating that there is provision for altering the charges available with the Courts at the time of consideration of witnesses and conducting the trial. If the Court finds it feasible that the charges are made out, then the same can always be enhanced. It is further argued that in terms of provisions of Section 217 of CrPC, the Court is having right to ask for recalling of all the witnesses as statements are to be recorded with respect to additional charges framed. He has placed reliance upon the judgment passed by the Supreme Court in the case of Dr. Nallapareddy Sridhar Reddy vs. The State of Andhra Pradesh & Ors., [Criminal Appeal No.1934 of 2019 (Arising out of SLP (Crl.) No.3884 of 2019].

Heard learned counsel for the rival parties and perused the available record.

For determination of the question involved, provisions of Section 216 and 217 of CrPC are required to be seen which read 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 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."

217. Recall of witnesses when charge altered.--Whenever a charge is altered or added to by the Court after the

HIGH COURT OF MADHYA PRADESH Cr.R. No. 2598/2021 (Brajendra Singh Rawat vs State of M.P.) 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;

(b) also to call any further witness whom the Court may think to be material."

From the perusal of the aforesaid provisions, it is apparently clear that the trial Court are having right to alter the charges at any stage of proceedings if it is found that certain provisions are made out. The Supreme Court in the case of Dr. Nallapareddy Sridhar Reddy (supra) has held as under:-

"22 In the present case, the High Court while directing the framing the additional charges has evaluated the material and evidence brought on record after investigation and held:

"LW1 is the father of the de facto complainant, who states that his son in law i.e., the first accused promised that he would look after his daughter at United Kingdom (UK) and promised to provide Doctor job at UK and claimed Rs.5 lakhs for the said purpose and received the same and he took his daughter to the UK. He states that his son-in-law made him believe and received Rs.5 lakhs in the presence of elders. He states that he could not mention about the cheating done by his son-inlaw, when he was examined earlier. LW13, who is an independent witness, also supports the version of LW1 and states that Rs.5 lakhs were received by A1 with a promise that he would secure doctor job to the complainant's daughter. He states that A1 cheated LW1, stating that he would provide job and received Rs.5 lakhs. LW14, also is an independent witness and he supported the version of LW13. He further states that A1 left his wife and child in India and went away after receiving Rs.5 lakhs.

Hence, from the above facts, stated by LWs. 13 and 14, prima facie, the version of LW1 that he gave Rs.5 lakhs to A1 on a promise that he would provide a job to his daughter and that A1 did not provide any job and cheated him, receives support from LWs. 13 and 14.

When the amount is entrusted to A1, with a promise to provide a job and when he fails to provide the job and does not return the amount, it can be made out that A1 did not have any intention to provide job to his wife and that he utilised the amount for a purpose other than the purpose for which he collected the amount from LW1, which would suffice to attract the offences under Sections 406 and 420 IPC. Whether there is truth in the improved version of LW.1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial. 14 It is also evidence from the record that the additional charge sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed."

(Emphasis supplied)

23 The test adopted by the High Court is correct and in accordance with decisions of this Court. In the counter affidavit filed by the fourth respondent before this Court, depositions of PW 1 (LW 1), PW 5 (LW 12) and PW 6 (LW 13) and their cross-examination have been annexed. The material on record supports the possibility that in April 2006, the appellant demanded Rs 5,00,000/- from PW 1, who is the complainant, in order to secure a doctor's job for the complainant's daughter in the United Kingdom. According to PW 1, he borrowed the amount from PW 5 (brother-in-law of PW 1) and paid it to the appellant in the presence of PW 5 and PW 6 (friend of PW 1). Without pronouncing on the probative value of such evidence, there exists sufficient material on record that shows a connection or link with the ingredients of the offences under Sections

HIGH COURT OF MADHYA PRADESH Cr.R. No. 2598/2021 (Brajendra Singh Rawat vs State of M.P.) 406 and 420 of the IPC, and the charges sought to be added.

24 The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the 15 reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."

Learned trial Court at the time of recording the statement has arrived at the conclusion that the alteration of charges are required as certain other charges are prima facie made out against the accused persons, therefore, additional charges were framed and they were required to be considered before the Court of Sessions, therefore, the matter was committed to the Sessions Court. The Sessions Court has rightly passed the impugned order and fixed the matter for framing of charges, therefore, no illegality appears to be committed by learned Sessions Court in view of the judgment passed by the Supreme Court in the case of Dr. Nallapareddy Sridhar Reddy (supra).

In such circumstance, present revision sans merit and is accordingly dismissed.

ALOK KUMAR 2021.12.13 17:03:45 (Vishal Mishra) +05'30' Judge AKS