Prasanta Kumar Sethy vs State Of Odisha And Another
2023 Latest Caselaw 2468 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLREV No.843 of 2004

           Prasanta Kumar Sethy                   ....         Petitioner
                                        Mr. Nirod Kumar Sahoo, Advocate

                                        -versus-

           State of Odisha and another             ....          Opp. Parties
                                                        Mr. D. Biswal, ASC

                     CORAM:
                     JUSTICE CHITTARANJAN DASH
                   DATE OF JUDGMENT : 23.03.2023
Chittaranjan Dash, J
1.

Heard learned counsel for the Petitioner and Mr. D. Biswal, learned Addl. Standing Counsel.

2. The legality, propriety and correctness of the order dated 8.11.2004 passed by the JMFC, Bhadrak in exercise of powers under Section 216 Cr.P.C., in G.R. Case No. 1404 of 1993 (State Vs. Prasant Ku. Sethi) has been called in question.

3. Briefly stated the facts of the case are that pursuant to the complaint filed by complainant Chhabilata Sethy registered as 1 C. C. Case No.88 of 1992, the learned court forwarded the complaint to the police U/s. 156(3) Cr.P.C. On the basis of the said complaint an F.I.R. was registered against the Petitioner and charge sheet was submitted on completion of the investigation U/s. 498-A/506 Indian Penal Code read with Section 4 of the Dowry Prohibition Act before the J.F.M.C., Bhadrak in G.R. Case No.1404 of 1993.

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4. The case record reveals that the last witness in the case has been examined on 10th February, 1999. The petition for addition/alteration of charge was filed by the informant on 10th January, 2002. Objection was invited from the present Petitioner. Objection was filed on 12.08.2002.The learned court upon hearing the parties on the Petition passed order disposing the same in affirmative vide the order impugned herein dated 8th November, 2004 allowing the prayer of the informant and framed the charge against the Petitioner in the offence U/s 494 Indian Penal Code.

5. Being aggrieved, however, the Petitioner preferred the present Revision on 10th December, 2004. It is submitted by learned counsel for the Petitioner that by allowing the prayer of the complainant the learned court below not only opened a new case but fill up the lacuna and it would prolong the proceeding by re-examination of witnesses. He further submitted that there is substance or material before the court to frame the charge U/s. 494 IPC. According to the learned counsel relying upon the mere statement of P.W.2 without a detail description as to the date, time, place and manner of alleged second marriage, the court ought not have framed charge and as such the order impugned is unjust, illegal and amount to miscarriage of justice. It is also argued that the offence U/s. 494 is not a continuing offence and the court is bound by the statute and barred to take cognizance for the offences reported beyond period of limitation prescribed U/s. 468 Cr.P.C. It is emphatically submitted that before framing of charge the learned court below should have given opportunity of hearing to the Petitioner.

6. In order to appreciate the controversy, the relevant provision under Section 216 Cr.P.C. may be adverted to.

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"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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

7. The ambit and scope of powers of the trial court to alter the charge under Section 216 Cr.P.C. fell for consideration in P. Kartikalakshmi Vs. Ganesh and another (Apex Court Appeal No.1709 of 2014), wherein it has been held that the power under Section 216 to alter or add any charge at any time before the judgment is pronounced, is exclusive to the Court and there is no right of any party to raise a claim in regard to the same as a matter of right. The observations made in the judgment in this regard are as follows:-

"7.... Section 216 Cr.P.C. empowers the Court to alter or add any charge at any time before the judgment is

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pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 Cr.P.C. to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order needs to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

8. We were taken through Sections 221 & 222 Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. 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 Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before

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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 Cr.P.C. 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 jeopardized."

8. The question as to when court can alter or add to any charge while exercising powers under Section 216 Cr.P.C. and also the duty of court while adding/altering charge and the materials which may be considered therefor came up for consideration in Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and another, and it was held that the court can change or alter the charge if there is defect or something is left out. The test to be applied is that it must be founded on material available on record and the principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with materials produced before him or if subsequent evidence comes on record.

9. Taking into consideration the earlier decisions in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others, Kantilal Chandulal Mehta Vs. State of Maharashtra, C.B.I. Vs. Karimullah Osan Khan and Jasvinder Saini and others vs. State (Government of NCT of Delhi), the following observations were made.

"9. The aforesaid provision has been interpreted in Hasanbhai Valibhai Qureshi, (2004) 5 SCC 347, wherein the Court has observed:-

"Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial

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before a Court of Session and trial of warrant cases by Magistrates respectively. There is a scope of alteration of the charge during trial on the basis of materials brought on record. Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused."

10. In Hasanbhai Valibhai Qureshi, reference was made to Kantilal Chandulal Mehta v. State of Maharashtra wherein it has been ruled that the Code gives ample power to the courts to alter or amend a charge provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him. Placing reliance on the said decision, it has been opined that if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.

11. In Jasvinder Saini v. State (Govt. of NCT of Delhi) , (2013) 7 SCC 256, the charge- sheet was filed before the jurisdictional Magistrate alleging commission of offences under Sections 498-A, 304-B, 406 and 34 IPC against the appellant Nos. 1 to 4 therein. A supplementary charge-sheet was filed in which the appellant Nos. 5 to 8 therein were implicated for the case to which Section 302 IPC was also added by the investigating officer. After the matter was committed to the Court of Session, the trial court came to the conclusion that there was no evidence or material on record to justify framing of a charge under

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Section 302 IPC, as a result of which charges were framed only under Sections 498-A, 304-B read with Section 34 IPC. When the trial court was proceeding with the matter, the Apex Court delivered the judgment in Rajbir v. State of Haryana and directed that all the trial courts in India to ordinarily add Section 302 to the charge on Section 304-B IPC so that death sentences could be imposed in heinous and barbaric crimes against women. The trial court noted the direction in Rajbir and being duty-bound, added the charge under Section 302 IPC to the one already framed against the appellant therein and further for doing so, it placed reliance on Section 216 CrPC. The said order was assailed before the High Court which opined that the appearance of evidence at the trial was not essential for framing of an additional charge or altering a charge already framed, though it may be one of the grounds to do so. That apart, the High Court referred to the autopsy surgeon's report which, according to the High Court, provided prima facie evidence for framing the charge under Section 302 IPC. Being of this view, it declined to interfere with the order impugned.

12. The Apex Court Court adverting to the facts held thus: (Jasvinder Saini case, SCC p.262, para 15)

" 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 IPC. 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

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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 the main charge and not an alternative charge be 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 alternatives 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. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case, 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."

It is further held that:

"It is appropriate to note here, the Court further observed that the annulment of the order passed by the Court would not prevent the trial court from re-examining the question of framing a charge under Section 302 IPC

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against the appellant therein and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. In that context, reference was made to Hasanbhai Valibhai Qureshi.

xxx

13. In Karimullah Osan Khan, (2014) 11 SCC 538, the Apex Court was concerned with the legality of the order passed by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 for Bomb Blast Case, Greater Bombay rejecting the application filed by the Central Bureau of Investigation (for short "CBI") under Section 216 CrPC for addition of the charges punishable under Section 302 IPC and other charges under the Penal Code and the Explosives Act read with Section 120-B IPC and also under Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The Designated Court framed charges in respect of certain offences and when the CBI filed an application for addition of the charge under Section 302 IPC and other offences, the Designated Court rejected the application as has been indicated earlier. In the said context, the Court proceeded to interpret the scope of Section 216 CrPC. Reference was made to the decisions in Jasvinder Saini (supra) and Thakur Shah v. King Emperor. Proceeding further, it has been ruled thus:-

"15. Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions

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mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.

Section 216 CrPC confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub-sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court (See Harihar Chakravarty v. State of W.B.). Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in Section CrPC and other related provisions."

14. It is therefore seen that the scope of powers of the court to alter or add any charge under Section 216 Cr.P.C. is very wide in nature and it confers exclusive jurisdiction on the court in regard to such matters

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which may be exercised at any time before the judgment is pronounced. The rights of the parties in regard to the same would be extremely limited and no addition or alteration or objection with regard thereto, can be raised as a matter of right.

15. In the case at hand, the F.I.R. had been lodged under Sections 498- A, 506 IPC and section 4 D P Act. After examination of the prosecution witnesses upon an application moved on behalf of the complainant, the trial court has duly considered the facts and circumstances of the case and the evidence, which was on record, to come to a conclusion that the necessary alteration in the charge was required and accordingly proceeded to allow the application framing the charge U/S. 494 IPC in addition to other.

16. In view of the settled legal position in case of any omission in framing of the charge if it comes to the knowledge of the court trying the offence, the power to alter the charge under Section 216 Cr.P.C. is always vested in the Court to be exercised at any time before the judgment is pronounced.

17. The section is in the nature of an enabling provision for the Court to exercise its power under certain contingencies when the relevant facts with regard thereto are brought to its notice. In case where a situation so demands if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, the Court may do so on its own or upon an application of the parties.

18. It may be reiterated that the test to be applied in this regard is that it must be founded on material available on record and the principle that has to be kept in mind is that the charge so framed by the Magistrate is

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on the basis of materials produced before him or the subsequent evidence which comes on record.

19. The contention relating to the defence of the accused which seeks to impeach the veracity of the depositions made by the prosecution witnesses would be a question to be seen at the trial and need not be determined at the time of framing of charge. As far as the question of limitation is concerned the same would be an issue in taking cognizance of the offence. Here the court postulates the framing of charge which obviously have no relevance to the provision enumerated U/s.468 Cr.P.C. The stage of appreciation of evidence on merit by the court comes up only after the charges have been framed and the trial has commenced. For the purpose of framing of charge the court only needs to prima facie determine that there exists sufficient material for the commencement of trial. The decision relied upon by the Petitioner in the matter of Pashaura Singh vrs. State of Punjab & another reported in (2010) 11 SCC 749 is in respect of quashing of cognizance and not in relation to framing of charge, hence could be applied in favour of the Petitioner.

20. Counsel for the Petitioner has not been able to point out any material error or irregularity in the exercise of power under Section 216 Cr.P.C. The Criminal Revision thus fails and is accordingly dismissed.

(Chittaranjan Dash) Judge

KC Bisoi /Secretary