Punjab-Haryana High Court
Mohd Ramzan vs State Of Haryana And Others on 5 August, 2024
Neutral Citation No:=2024:PHHC:103343
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CRM-M-29524-2024
127
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M-29524-2024
Date of decision: 5th August, 2024
Mohd. Ramzan (deceased) through LR
...Petitioner(s)
Versus
State of Haryana and others
...Respondent(s)
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. Rohan Mittal, Advocate for the petitioner.
Mr. Neeraj Poswal, AAG, Haryana.
***
MANISHA BATRA, J (ORAL):-
The instant petition has been filed by the petitioner seeking
quashing of order dated 14.09.2022 passed by the Court of Chief Judicial
Magistrate, Nuh in case arising out of FIR No. 726 dated 15.10.2013
under Sections 147, 149, 223, 452 and 506 of IPC, 1860 at Police Station
Nuh titled as 'State Vs. Salauddin and others', whereby an application
filed by the petitioner for making alteration in the charge and framing
charges under Sections 147, 148, 392, 420 and 452 read with Section 120-
B of IPC was dismissed as well as the order dated 10.10.2023 passed by
the Court of learned Sessions Judge, Nuh in criminal revision bearing No.
113 of 2022 titled as 'Ramzan Vs. State of Haryana' thereby dismissing
the petition filed by the present petitioner and affirming order dated
14.09.2022.
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2. Brief facts of the case relevant for the purpose of disposal of
this petition are that the aforementioned FIR was registered on the basis
of complaint lodged by the present petitioner alleging therein that his sons
namely Aarif and Jiaudin got married with Jule Khan and Sabnur
respectively, on 20.02.2005. On 27.12.2012, Jule Khan suffered a
miscarriage due to some natural reasons. However, in connivance with
her father Salauddin, she got registered a case levelling false allegations
against the petitioner and his family members. On 01.01.2013, the
accused Salauddin and Yasir came to his house and assaulted his son
Aarif. On 04.01.2013, the accused Allauddin, Kutabddin and Nasir came
there and again assaulted the son of the petitioner. They also took forcible
possession of his house by showing weapons and threw his family
members and himself out of his house. He further alleged that the accused
persons stayed at his house from 01.01.2013 to 19.01.2013, took away all
articles lying in his house as well as his buffalo and then left while
extending threat to complainant to face dire consequences.
3. As per the further allegations, on reaching back to his house,
the complainant found that gold and silver ornaments, cash amount of Rs.
40,000/-, 35 bags of mustard and wheat crops, one buffalo and other
costly articles lying in his house, documents relating to ownership of
property and educational qualifications certificates of his son were
missing. While alleging that the accused also forged a Nikahnama with
the help of Maulvi Ramjan and had been blackmailing and extending
threats to him, he prayed for taking action in the matter. During the course
of investigation, offences under Sections 392, 420 and 120-B of IPC were
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added which were subsequently deleted. The accused were arrested. After
completion of investigation, challan under Sections 147, 149, 323, 452
and 506 of IPC was presented against the accused persons.
4. On finding a prima facie case, the learned trial Magistrate
charge sheeted the accused under Sections 323 and 506 read with Section
34 of IPC. They pleaded not guilty to the charges and claimed trial.
During the course of trial, the present petitioner-complainant moved an
application under Section 240 of Cr.P.C. making prayer for alteration in
the charges so framed and for also framing charges under Sections 147,
149, 392, 420, 452 and 120-B of IPC against the respondents No. 2 to 7.
The application so filed by the present petitioner had been dismissed vide
order dated 22.07.2016. A revision petition filed against the said order had
also been dismissed by the Court of learned Additional Sessions Judge,
Nuh vide order dated 01.09.2017. The petitioner thereafter approached
this Court, by filing a petition bearing CRM-M-41101-2017 (O&M) titled
as 'Mohammad Ramzan Vs. State of Haryana' challenging the orders
dated 22.04.2016 and 01.09.2017 and the said petition had also been
dismissed vide order dated 02.11.2017.
5. As revealed from the record, after recording of statements of
material prosecution witnesses, the petitioner again moved an application
under Section 216 of Cr.P.C. seeking alteration/addition of charges under
Sections 147, 148, 392, 420, 452 and 120-B of IPC. The said application
had been dismissed by the Court of learned Chief Judicial Magistrate vide
order dated 14.09.2022 and the revision filed against the said order has
also been dismissed vide order dated 10.10.2022 that have been assailed
in this petition.
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6. It is argued by learned counsel for the petitioner that the
impugned orders are not sustainable in the eyes of law as while passing
the same, the Court of learned Chief Judicial Magistrate and the
revisional Court did not properly appreciate the material placed on record
and ignored the fact that from the statements of the witnesses as examined
by the prosecution, a clear cut case was made out to show that apart from
offences punishable under Sections 323 and 506 of IPC for which the
respondents No. 2 to 7 were facing trial, they had also committed offences
under the above mentioned Sections. With these broad submissions, it is
argued that the impugned orders of the Courts below are liable to be set
aside, the petition deserves to be accepted and the application moved by
the petitioner for alteration/addition of the charges under the
aforementioned sections deserves to be allowed. To fortify his argument,
learned counsel for the petitioner has placed reliance upon 'Anant
Prakash Sinha Vs. State of Haryana, 2016(1) Law hearlad 630'.
7. Learned State counsel has not raised any serious objection as
to allowing the petition.
8. Due deliberations have been given to the contentions as
raised by learned counsel for the petitioner.
9. The petitioner is aggrieved by the fact that the prayer made
by him for making alteration in the charges previously framed against the
respondents No. 2 to 7 and adding charges under Sections 147, 148, 392,
420, 452 and 120-B of IPC has not been accepted by the trial Court and
by the revisional Court. Section 216 of Cr.P.C. authorises the Court to
make alteration or addition to charge at any time before the judgment is
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pronounced. The phrase "add any to the charge" in sub-section 1 of this
Section includes addition of a charge. The provision enables the addition
or alteration of a charge, based on materials brought on record during the
course of trial. Sub Section 3(3) provides that if the alteration or addition
to a charge does not cause prejudice to the accused in his defence or the
prosecutor in the conduct of the case, the Court may proceed with the trial
as if additional or alternative charge is the original charge. Sub-Section 4
of this Section, contemplates a situation, where the addition or alteration
of charge which prejudices the accused and empowers the Court to either
direct a new trial or adjourn the trial for such period as may be necessary
to mitigate the prejudice likely to be caused to the accused. It is also well
settled proposition of law that alteration or change in the charge can be
made by the Court at any stage of the trial, if there is defect or something
is left out.
10. The question that arises for consideration before this Court is
as to whether the petitioner being complainant of the aforementioned FIR
had a right to seek any order to be passed under Section 216 of Cr.P.C.
before the trial Court as a matter of right for addition or alteration of the
charge. In this context, it would be preferable to refer to 'Thakur Ram
and others Vs. State of Bihar, AIR 1996 SC 911', wherein, it was
observed that the powers available under Section 216 of Cr.P.C. can be
exercised only by the Court on its own and no party has right to seek for
passing of any order under the said provision. Further, in
P.Kartikalakshmi vs. Sri Ganesh (SC), 2017(3) SCC 347', the Hon'ble
Supreme Court had again observed that no party neither de-facto
complainant nor accused or for that matter prosecution had vested right to
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seek any addition or alteration of charge because it is not provided under
Section 216 of Cr.P.C. It is observed that if such a course to be adopted by
the parties, if allowed then it will be well nigh impossible for the criminal
court to conclude its proceedings and concept of speedy trial will get
jeopardised. In 'Dr. Nallapareddy Sridhar Reddy vs. State of Andhra
Pradesh (SC), 2020 (1) RCR (Criminal) 787', the Hon'ble Supreme
Court while dealing with an appeal against an order passed by the High
Court, thereby allowing a revision petition filed by the complainant
against the order of dismissal of application under Section 216 of Cr.P.C.,
had dismissed the same by observing that reasons were spelt out by the
High Court necessitating the addition of the charge and the view as taken
in P.Kartikalakshmi's case (supra), had been upheld in that case. In
Anant Prakash Sinha's case (supra), the Hon'ble Supreme Court had
observed that a complainant can maintain an application for
adding/altering charges. However, a Division Bench of High Court of
Madhya Pradesh in 'Vijay Kumar Jain Vs. State of Madhya Pradesh,
2020 CriLJ, 2411 had observed that view rendered by Supreme Court in
P.Kartikalakshmi's case (supra) having not been considered in
subsequent judgment rendered in Anant Prakash Sinha's case (supra),
the view so taken was rendered per incuriam of the earlier view and had
therefore, observed that the view taken by the Apex Court in
P.Kartikalakshmi's case (supra) continued to hold the field. Meaning
thereby that though the trial Court is at liberty to suo motu exercise its
jurisdiction, if facts and circumstances of the case justify such invocation,
based on the interpretation given by the Apex Court to the scope, sweep
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and content of Section 216 of Cr.P.C. in P.Kartikalakshmi's case (supra),
and Dr. Nallapareddy Sridhar Reddy's case (supra) but the powers under
Section 216 of Cr.P.C. cannot be exercised on an application made by any
of the rival parties and such power is available to be exercised only suo
motu by the trial Court.
11. In the instant case, the learned trial Court did not exercise
any suo motu powers while passing the impugned order and such powers
were sought to be invoked on by filing of an application under Section
216 of Cr.P.C. by the petitioner. In view of ratio of law as laid down in the
above cited cases, there can be no hesitation in observing that learned trial
Court committed no error in not acting upon the application so moved.
12. Even otherwise, on a perusal of statements recorded by the
petitioner and other prosecution witnesses before the trial Court (copies of
which have been placed on record), it is revealed that these statements are
are reiteration of the statements as made by them during the course of
investigation. The investigating agency had conducted thorough
investigation in the matter and had arrived at a conclusion that no case for
commission of offences punishable under Sections 392, 420 and 120-B of
IPC had been made out. On going through the statements of PW1-
Ziauddin, PW3- Mohd. RAmjan, PW4-Hamida, PW8-Mohd. Aarif and
PW9-Wahid, I am of the considered opinion that the same do not make
out a case for commission of the aforementioned offences as against the
respondents No. 2 to 7 for the following reasons.
13. So far as the offence of cheating is concerned, the same is
defined under Section 415 of IPC. The essential ingredients required to
constitute this offence are that there should be fraudulent or dishonest
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inducement of a person by deceiving him; the person so deceived should
be induced to deliver any property to any person; or to consent that any
person shall retain any property; or the person so deceived should be
intentionally induced to do or omit to do anything which he would not do
or omit, if he were not so deceived. Then Section 420 deals with the cases
of cheating whereby the deceived person is dishonestly induced to deliver
any property to any person; to make any alter or destroy; the whole or any
part of valuable security; or anything which is signed or sealed and which
is capable of being converted into a valuable security. The statements of
neither of the witnesses of prosecution, however, show as to what specific
act was committed by either of respondents No. 2 to 7, which fell within
the definition of the offence of cheating punishable under Section 420 of
IPC.
14. Then with regard to the offence under Section 392 of IPC,
the allegations are that respondents No.2 to 7 had robbed the complainant
by carrying away the gold and silver ornaments, luxury items and one
buffalo from his house. As per Section 390 of IPC in all robbery, there is
either theft or extortion. Theft is 'robbery' if in order to the committing of
theft; or in committing the theft; or in carrying away or attempting to
carry away property obtained by theft; the offender, for that end,
voluntarily causes or attempts to cause any person, death or hurt or
wrongful restraint; or fear of instant death; or of instant hurt; or of instant
wrongful restraint. In view of this definition, the offence of robbery by
theft is committed, if the offender causes or attempts to cause, hurt,
wrongful restraint, or fear of instant death or hurt or wrongful restraint to
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the victim. None of the witnesses so examined before the prosecution
however, are shown to have uttered even a single word to the effect that
while taking away the ornaments and articles from the house of the
complainant, either of the respondents had voluntarily caused or
attempted to cause hurt, wrongful restraint, death, fear of death or of
instant hurt or of wrongful restraint to either the complainant or his family
members. As such, in the considered opinion of this Court, the
investigating agency had rightly deleted the offences under Sections 392
and 420 of IPC and even on the basis of the evidence produced on record,
no case for framing charges under the aforementioned Sections had been
made out.
15. So far as, the offences under Sections 147, 149, 452 and 120-
B of IPC are concerned, the learned trial Magistrate had not framed
charges under the aforementioned Sections as on 22.07.2016 while
framing charges under Sections 323 and 506 of IPC. The revision petition
and petition before this Court under Section 482 of Cr.P.C., as filed
against the said order of Magistrate have already been dismissed. On a
cursory perusal of the statements of PW-1, PW-3, PW-4, PW-8 and PW-9,
it is not revealed that the respondents No. 2 to 7 had formed any unlawful
assembly within the meaning of Section 141 of IPC, or had used force or
violence while being armed with deadly arms, in prosecution of common
object of such assembly, thereby committing offence of rioting within the
meaning of Section 146 of IPC punishable under Sections 147 and 148 of
IPC. Therefore, the learned trail Magistrate as well as revisional Court
can not be stated to have erred by not accepting the prayer made by the
petitioner to frame charges under Sections 147 and 148 of IPC as well.
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16. So far as the offence under Section 452 of IPC is concerned,
though there are allegations that the respondents No. 2 to 7 occupied the
house of the complainant and stayed there from 01.01.2013 to 19.01.2013
but it has come on record that the FIR in this case was lodged only on
15.10.2013 i.e. after a gap of about nine months from the date of alleged
incident and the allegations that respondents No. 2 to 7 had also entered
into a conspiracy, were also raised at that time. The learned trial
Magistrate as well as the revisional Court had not accepted the plea of the
petitioner to frame charges under Sections 452 and 120-B of IPC as
against the respondents No. 2 to 7 even after considering the evidence
produced on record. As such, irrespective of the fact that the trial Court
was competent to frame charges at any stage of the trial, no illegality can
be said to have been committed by the learned trial Court by declining to
frame charges under the aforementioned Sections as in view of the
reasons as spelt out above, the addition of the charges was not
necessitated. Therefore, obviously, the order dated 10.10.2023 also cannot
be stated to be suffering from any infirmity. As such, the impugned orders
do not warrant any interference. Accordingly, the petition is dismissed.
The proceedings before the learned trial Court shall continue.
17. Since the main petition has been dismissed, pending
application, if any, is rendered infructuous.
[MANISHA BATRA]
JUDGE
5th August, 2024
Parveen Sharma
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
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