Punjab-Haryana High Court
Dr Jasdip Kaur vs Manjit Singh And Others on 2 April, 2024
2024:PHHC:050119
CRM-M-10110-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
136 CRM-M-10110-2024
Date of Decision:02.04.2024
Dr.Jasdip Kaur
..... Petitioner
VS
Manjit Singh & others
..... Respondents
CORAM : HON'BLE MR. JUSTICE ALOK JAIN
****
Present :- Mr. Ritesh Pandey, Advocate
for the petitioner
Mr.Fateh Singh Dhillon, Advocate for
Mr.Gagneshwar Walia, Advocate
for respondent No.1.
*****
ALOK JAIN, J. :
1. Prayer in the present petition is for quashing of the order
dated 13.02.2024 passed by the learned Additional Sessions Judge,
Gurdaspur, vide which the revision petition filed by respondents No.1,2
and 4 had been allowed, while setting aside the order dated 28.11.2023
passed by the learned Judicial Magistrate First Class, Gurdaspur, whereby
the learned trial Court allowed the application filed by the petitioner under
Section 216 Cr.P.C. for alteration of charge from Section 323 IPC to
Section 324 IPC, in Criminal Complaint No.32, dated 15.06.2013, under
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Sections 452,332, 353, 186, 148 and 149 IPC, registered at Police Station
Sadar Gurdaspur.
2. The brief facts of the case narrated by counsel for the
petitioner are that while the petitioner was serving as a Medical Officer at
CHC, Village Allechak, the accused trespassed in her room and caused
injuries. The FIR No.42, dated 09.03.2007, was lodged, wherein the State
preferred to file a cancellation report, however, the petitioner protested
and the accused were summoned under Section 323 and 34 IPC, vide
order dated 15.06.2013.
3. Cutting the long story short, in the last 17 years of this
protracted litigation (i.e. from 2007 till 2024), the accused were
summoned on 14.08.2013 to face a trial under Section 452, 323, 148 and
149 of the IPC. The said order was challenged by the accused in a
revision and the learned Additional Sessions Judge, Gurdaspur, vide order
dated 15.09.2015, remanded the matter back for fresh adjudication. The
trial Court again vide order dated 14.01.2016, summoned the accused
under Section 452, 323, 506,148 and 149 IPC. The accused again
preferred a revision before the ld. Additional Sessions Judge and vide
order dated 19.05.2016 the order dated was set aside on 14.01.2016 and
finally the trial Court vide order dated 19.02.2018, summoned the accused
only under Sections 323 and 34 IPC. After most of the evidence being
completed, the petitioner moved an application after four years, under
Section 216 of Cr.P.C. in the year 2022 for alteration of charge and vide
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order dated 28.11.2023, the trial Court allowed the application adding the
offence under Section 324 IPC against the accused.
4. The accused again approached the Sessions Court and
challenged the order passed under Section 216 of Cr.P.C., which came to
be allowed on 13.02.2024, and the charge under Section 324 IPC was
removed and aggrieved by the said order dated 13.02.2024, the petitioner,
who is the original complainant has approached this Court.
5. Learned counsel for the petitioner has opened his arguments
and submitted that the petitioner had levelled categoric allegations that the
accused Manjit Singh gave a thick karha blow, worn by him on his wrist,
which hit the complainant on the left eyebrow near forehead. To
substantiate the said injury, the counsel has relied upon the medico legal
report, which reported an incised wound. In the light of the above, the
counsel has also relied upon the testimony of the complainant, recorded
on 27.07.2013, wherein she clearly stated that the accused who was
wearing a heavy weight karha, gave a fist blow of his hand, which hit her
on her left eye and therefore, in the light of all the above, the trial Court
legally passed the order dated 28.11.2023 adding the charge of Section
324 IPC.
6. Learned counsel for the petitioner has also argued and relied
upon the judgment of the Hon'ble Supreme Court in the case of
Jaswinder Saini vs. State of Delhi to argue that the provisions of Section
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216 of Cr.P.C. empowers the Court to alter or add any charge at any point
of time. The relevant para reads as under:
"11. A plain reading of the above would show that the
Court's power to alter or add any charge is unrestrained
provided such addition and/or alteration is made before the
judgment is pronounced. Sub-sections (2) to (5) of Section
216 deal with the procedure to be followed once the Court
decides to alter or add any charge. Section 217 of the Code
deals with the recall of witnesses when the charge is altered
or added by the Court after commencement of the trial. There
can in the light of the above be no doubt about the
competence of the Court to add or alter a charge at any time
before the judgment. The circumstances in which such
addition or alteration may be made are not, however,
stipulated in Section 216. It is all the same trite that the
question of any such addition or alternation would generally
arise either because the Court finds the charge already
framed to be defective for any reason or because such
addition is considered necessary after the commencement of
the trial having regard to the evidence that may come before
the Court. In the case at hand the evidence assembled in the
course of the investigation and presented to the trial Court
was not found sufficient to call for framing a charge
under Section 302 IPC. The trial Court recorded a specific
finding to that effect in its order dated 18th March 2009
while framing charges against the appellants before us. The
trial Court said:
"The two witnesses Kiran Devi and Smt. Dharam
Kaur were at the spot when the deceased fell down
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from the second floor and did not notice anyone on the
roof of the house. Thus there is no material for framing
of charge Under Section 302 IPC against the accused
persons. However, there are specific allegations of
dowry demand and torture in the statement given by
Sh. Ajay Gautam to the SDM and as also in the
statements given by his wife Manisha Gautam and his
son Vishal Gautam. The deceased had died under
unnatural circumstances. Her death took place at her
matrimonial home within seven years of her marriage.
There is a presumption Under Section 113-B of the
Indian Evidence Act of dowry death. Hence on the
basis of material on record, I am of the view that
prima facie offence Under Section 498A/304B/34 IPC
is made out against all the accused persons."
7. Learned counsel for the petitioner has also relied upon the
judgments passed by the Hon'ble Supreme Court of India in case titled as
"Anant Prakash Sinha@Anant Sinha Vs. State of Haryana and Anr."
and "State of Maharashtra Vs. Salman Salim Khan and Anr." and
another judgments passed by the Coordinate Bench of this Court in case
titled as "Roshan Lal Vs. State of Punjab" and "Ashwani Kumar Vs. The
State of Haryana".
8. To summarise the arguments of learned counsel for the
petitioner, it has been averred that under the provisions of Section 216
Cr.P.C., it is open to the trial Court to alter the charge at any stage of trial,
depending on the material that is brought before it in the form of
evidence.
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9. Heard learned counsel for the petitioner at length and have
gone through the impugned order.
10. Although, it is the settled preposition of law that there is no
limitation and the powers of the trial Court are unfettered to alter the
charge at any stage, however, the same has to be done in the light of the
cogent evidence and the fact that the said evidence is enough to fulfil the
ingredients of the imposition of any other charge. In the present case, it is
the admitted position of the petitioner that the accused gave a fist blow by
his right hand and the karha which he was wearing hit her on the left eye,
however, by no stretch of imagination can be ruled that the karha which
the accused was wearing could be treated as a weapon of offence for
imposing the provisions of Section 324 IPC.
11. Another aspect of the matter is that the petitioner has
completed her entire evidence after the charges were finally framed on
28.11.2023, however, when this date is seen in the light of the fact that
every effective order passed by the trial Court, has been duly assailed by
either side of the parties, and therefore, it cannot be ruled out, it was at the
fag end of the trial when the petitioner moved the application for
amendment of charge. The Revisional Court has rightly set aside the
order dated 28.11.2023, vide which learned JMIC, Gurdaspur added the
Section 324 of IPC by allowing the application under Section 216 Cr.P.C.,
for the reason that the petitioner is a diligent and aggressive litigant who
has been following up the matter emphatically, therefore, it is beyond
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comprehension that the petitioner was not aware in the year 2018 when
the charge was finally framed and the trial began on 07.03.2018. Nothing
new or incriminating was brought forth by the petitioner and it was only
at the fag end of the trial that the application for alteration of charge was
filed. Be that as it may, the entire evidence has already been recorded and
the statements under Section 313 have also been recorded and much less
the trial Court is empowered under Section 216 of Cr.P.C. to alter the
charge at any time even after the completion of evidence, even after the
arguments heard and even when judgment is reserved, and can alter and
add any charge.
12. However, the expression 'at any time' and before the
judgment is pronounced, indicates that the power is very wide and can be
exercised in appropriate case in interest of justice but not cause any
prejudice to the accused. The Hon'ble Supreme Court of India in
P Kartikalakshmi v Sri Ganesh and Anr. has held that:
"6. Having heard the learned counsel for the respective
parties, we find force in the submission of the learned Senior
Counsel Respondent 1. Section 216 CrPC empowers the
Court to alter or add any charge at any time before the
judgment is 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
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Section 216 CrPC 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 need 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.
7. We were taken through Section 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
wellnigh impossible for the criminal court to conclude its
proceedings and the concept of speedy trial will get
jeopardised.
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13. The Apex Court in a full bench decision in the case of
Harihar Chakravarty Vs. State of West Benga , has gone to the extent to
hold that the direction to alter the charge so as to include an offence for
which the appellant was not originally charged, could only be done if the
trial Court itself had taken action under Section 227 Cr.P.C. before it
pronounced judgement. It could only have done so if there were materials
before it either in the complaint or in the evidence to justify such action.
14. Considering the above factual matrix that there was no
additional evidence or cogent proof before the trial Court which could
form the basis of alteration of charge and more so, the trial Court also did
not exercise power under Section 227 of Cr.P.C. and in the light of
discussion, I do not find any infirmity in the order dated 13.02.2024 as it
is no one's case that the karha which was worn by the accused in his wrist
was a weapon of offence to cause grievous injury although it is not
denied that an injury was caused due to the said ornament which the
accused was wearing, and therefore the charge could not be altered.
15. Accordingly, the present petition stands dismissed.
(ALOK JAIN)
JUDGE
April 02, 2024
manju
Whether speaking/reasoned : Yes
Whether Reportable : Yes
