Vijay Kumar Jain vs The State Of Madhya Pradesh on 2 March, 2020

[Cites 30, Cited by 14]

Madhya Pradesh High Court

Vijay Kumar Jain vs The State Of Madhya Pradesh on 2 March, 2020

Equivalent citations: AIRONLINE 2020 MP 211

1. In the present petition u/Sec. 482 Cr.P.C. inherent powers of this court are invoked seeking quashment of the impugned order dated 14/5/2019 passed by First Additional Sessions Judge, Gwalior (M.P.) in SST 2/2013 allowing an application preferred by prosecution u/Sec. 216 Cr.P.c. thereby altering charge to Sec. 13(1)

(d) & 13(2) of the Prevention of Corruptions Act,1988 (for brevity PC Act) in place of original charge framed u/Sec. 7 of the PC Act.

2. Learned counsel for rival parties are heard on the question of 2 Mcrc 8223/2020 admission and as well as final disposal.

3. The petitioner by relying upon the Apex court verdict in P. Kartikalakshmi Vs. Sri Ganesh (2017) 3 SCC 347 (decided on 12/8/2014) urges that power u/Sec. 216 Cr.P.C. for altering or adding to any charge already framed is exclusively available for the court to be exercised suo motu and the said power is not available to be exercised on behest of any of the rival parties in the trial. Further reliance is placed on a recent decision of Apex Court rendered on 21/1/2020 in Criminal Appeal No. 1934/19 (Dr. Nallapareddy Sridhar Reddy Vs. State of Andhra Pradesh & others) wherein earlier verdict of the Apex Court in case of P. Kartikalakshmi (supra) was referred to with approval.

3.1 In this background it is submitted that the trial court has no jurisdiction to alter charge u/Sec. 216 Cr.P.C. on the application preferred by the prosecution and thus, prayer is made for quashment of the altered charge impugned herein.

4. Per contra learned counsel for prosecution submits that initially on 16/8/2013 in the same trial, charge was framed u/Sec. 7 of the PC Act after holding that the allegations made are insufficient to frame charge u/Sec. 13 of the PC Act. Against the said order dated 16/8/2013, two revision petitions were filed by the prosecution bearing Cri. Rev. 937/2013 & Cri. Rev. 343/14 which 3 Mcrc 8223/2020 were finally disposed of by orders dated 12/2/2014 and 3/12/2014 respectively by Division Bench of this Court. Though on different dates both the said revisions were disposed of by orders of identical nature one of which was passed on 12/2/2014 in Cri. Rev. 937/2013 which is reproduced below:-

12/02/2014 Shri Sushil Chaturvedi, Special Public Prosecutor assisted by Shri Ajit Sudele, Advocate for petitioner- State Economic Offences Investigation Bureau.

Shri Sanjay Gupta, Advocate for respondent No.1.

Shri G. M. Soni, Advocate for respondents No. 2, 5, 6, 7, 8 and 9.

Shri M. L. Yadav, Advocate for respondent No.4.

Shri Mukesh Sharma, Advocate for respondents No. 10 and 15. Shri A. R. Shivhare, Advocate for respondent No.14.

Shri T. C. Singhal, Advocate for respondent No.11.

Shri Ravind Singh Chauhah,Advocate for respondents No.12 & 16.

Shri Arvind Dudawat, Advocate for respondent No.13.

None for the respondents No. 3 and 17

despite service of notice.

Heard.

The petitioner has filed this Criminal Revision against the framing of charges by the trial Court.

It is pleaded by learned Special Public Prosecutor for the petitioner State Economic Offences Investigation Bureau that the trial Court has framed the charges against some of the accused persons for commission of offence under Section 107 of IPC and against some of the accused persons for commission of offence under Sections 7 & 12 of 4 Mcrc 8223/2020 Prevention of Corruption Act, 1988 [ hereinafter referred to as ''the PC Act'']. It is further submitted that the charge-sheet was filed by the Prosecuting Agency against the accused persons for commission of offence punishable under Sections 420, 467, 468, 471, 120-B of IPC and Sections 13(1-d) and 13(2) of the PC Act. The trial Court has not mentioned the facts that why the charges against the accused persons for commission of offences of the aforesaid Sections, be not framed.

We have perused the order of framing of charges.

The trial Court has not assigned cogent reasons that why the charges against the accused persons in regard to commission of offences mentioned in the charge-sheet, have not been framed.

In accordance with Section 216 of Code of Criminal Procedure, the Court has power to alter or add any charge at any time before judgment is pronounced.

The petitioner is at liberty to file an application before the trial Court under the aforesaid Section for framing of appropriate charges for commission of offence against the accused persons. The trial Court is at liberty to consider the same in accordance with law and the respondentsaccused persons are also at liberty to place all the arguments before the trial Court.

With the aforesaid observation, this Criminal Revision is disposed of accordingly."

4.1 It is thus urged by learned counsel for prosecution that on the strength of the liberty given by the Division Bench in the aforesaid revisions the prosecution preferred an application dated 4/2/2015 u/Sec. 216 Cr.P.C. for alteration/addition of charge. The petitioner herein filed reply to the said application. The said application u/Sec. 216 Cr.P.C. filed by prosecution was kept pending for more than 4 5 Mcrc 8223/2020 years to be decided by impugned order on 14/5/2019 allowing the same by finding that there are sufficient ground to frame charge u/secs. 13(1)(d) & 13(2) of the PC Act.

4.2 The question that falls for consideration herein is as to whether in the given facts & circumstances, the impugned order allowing application u/Sec. 216 Cr.P.C. of the prosecution can be quahsed on the anvil of the decision of the Apex Court in the case of P. Kartikalakshmi (supra) which continues to hold the field till date.

4.3 Before proceeding ahead it would be apt to reproduce Sec. 216 Cr.P.C. and the relevant extracts of the decisions of Apex Court in P. Kartikalakshmi (supra) and Dr. Nallapareddy Sridhar Reddy (supra):-

"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 6 Mcrc 8223/2020 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."

4.4 In P.Kartikalakshmi v. Sri Ganesh reported as (2017) 3 SCC 347, the Supreme Court held as under:-

"6............Section 216 Cr.P.C. 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 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 need 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."

4.5 In Dr. Nallapareddy Sridhar Reddy Vs. State of Andhra Pradesh & others, the Apex court has held as under:-

"15. Section 216 appears in Chapter XVII of the CrPC.

7 Mcrc 8223/2020

Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase "add to any charge" in Sub-Section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done "at any time before judgment is pronounced". Sub-Section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the persecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub-Section (4) contemplates a situation where the addition or alteration of charge will prejudice 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. Section 217 of the CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.

16 The decision of a two-judge Bench of this Court in P Kartikalakshmi v Sri Ganesh12, dealt with a case where during the course of a trial for an offence under Section 376 of the IPC, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 of the IPC. Justice F M Ibrahim Kalifulla, while dealing with the power of the court to alter or add any charge, held:

"6. ...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 12 (2017) 3 SCC 347 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 8 Mcrc 8223/2020 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." (Emphasis supplied).

17 In Anant Prakash Sinha v State of Haryana13, a two judge Bench of this Court dealt with a situation where for commission of offences under Sections 498A and 323 of the IPC, an application was filed for framing an additional charge under Section 406 of the IPC against the husband and the mother-in law. After referring to various decisions of this Court that dealt with the power of the court to alter a charge, Justice Dipak Misra (as the learned Chief Justice then was), held:

"18. ... the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence 13 (2016) 6 SCC 105 comes on record. It is not to be understood that unless evidence has been let in, charges already framed 9 Mcrc 8223/2020 cannot be altered, for that is not the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial..."

(Emphasis supplied) 18 In CBI v Karimullah Osan Khan, this Court dealt with a case where an application was filed under Section 216 of CrPC during the course of trial for addition of charges against the appellant under various provisions of the IPC, the Explosives Act 1884 and the Terrorist and Disruptive Activities (Prevention) Act 1987. Justice K S P Radhakrishnan, speaking for the Court, held thus:

"17. 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 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.

18. 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 10 Mcrc 8223/2020 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."

19 In Jasvinder Saini v State (Govt of NCT of Delhi), this Court dealt with the question whether the Trial Court was justified in adding a charge under Section 302 of the IPC against the accused persons who were charged under Section 304B of the IPC. Justice T S Thakur (as he then was) speaking for the Court, held thus:

"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." (Emphasis supplied)

20 From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide- ranging power to change or alter any charge. The use of the words "at any time before judgment is pronounced" in Sub-Section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the 11 Mcrc 8223/2020 opinion of the court there 15 (2013) 7 SCC 256 was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges. The court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the court's power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Sub-Section (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused."

4.6 Counsel for the prosecution in support of his arguments relies upon Division Bench decision of Apex court in Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana & another (2016) 6 SCC 105 (decided on 4/3/2016).

5. From the above it is clear that in P. Kartikalakshmi (supra) and Anant Prakash Sinha alias Anant Sinha (supra) two conflicting views were expressed by Apex Court on the same issue as to whether power u/Sec. 216 Cr.P.C. can be invoked on an application by any of the rival parties. Pertinently the said two decisions are of benches of the same strength (D.B.). The earlier decision in the case of P. Kartikalakshmi (supra) which was 12 Mcrc 8223/2020 rendered on 12/8/2014 held that power u/Sec. 216 Cr.P.C. cannot be exercised on an application made by any of the rival parties but is available to be exercised only suo motu by trial court. While in subsequent decision rendered on 4/3/2016 in Anant Prakash Sinha (supra) contrary view was taken to the effect that there is no statutory bar in Sec. 216 Cr.P.C. for exercising power of altering/adding charge on an application by any of the parties to the trial.

5.1 In the subsequent judgment of Apex Court in Anant Prakash Sinha (supra) the earlier contrary view taken in P. Kartikalakshmi (supra) was not considered.

5.2 Going by the principle of law precedence earlier decision of the same bench strength in P. Kartikalakshmi (supra) having not been considered in subsequent judgment of the same bench strength in Anant Prakash Sinha (supra) it necessarily follows that the former would continue to hold the field and latter would suffer the default of per incuriam.

5.3 The earlier view by the Apex court was rendered in P. Kartikalakshmi (supra) on 12/8/2014 by the bench of 2 judges whereas subsequently contrary view was taken by coordinate bench of Apex court without referring or considering the earlier view of P. Kartikalakshmi (supra). Thus, the subsequent view in Anant 13 Mcrc 8223/2020 Prakash Sinha (supra) is rendered per incurium of the earlier view in P. Kartikalakshmi (supra).

5.4 The aforesaid view taken by this court is bolstered by the decision of Full Bench of this Court in Jabalpur Bus Operators Association and Ors. v. State of M.P. and Anr., 2003(1) M.P.H.T. 226 (FB) : 2003(1) MPJR 158 allowing the principle of precedent to be followed in such circumstances. Para 10 of the said judgment is reproduced below:-

"10. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of 14 Mcrc 8223/2020 rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedent with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point."

5.5 More so, the recent view of the Apex Court in Dr. Nallapareddy Sridhar Reddy (supra) has been rendered by upholding the view in the case of P. Kartikalakshmi (supra) after discussing Anant Prakash Sinha (supra). Thus, the view taken by the Apex court in the case of P. Kartikalakshmi (supra) continues to hold the field and binds all the courts as a precedent u/Art. 141 of the Constitution after eclipsing the subsequent view in Anant Prakash Sinha (supra) into the abyss of per incurium.

6. Testing the factual matrix attending the present case on the law laid down in regard to Sec. 216 Cr.P.c. as discussed above, it is evident that learned trial judge has not suo moto invoked it's jurisdiction but on being moved by application of the prosecution which was allowed by the impugned order. Thus learned trial judge 15 Mcrc 8223/2020 has failed to exercise jurisdiction available to it.

7. Consequently, the impugned order is held to be passed without jurisdiction and therefore falls foul of the test u/Sec. 397 r/w 401 Cr.P.C.

8. The next question which crops up is that whether this court should leave the case by quashing the order impugned or should allow the trial court to exercise jurisdiction u/Sec. 216 Cr.P.C. in accordance with law. If this court does not grant said liberty the prosecution may be prejudiced and defence would be unduly benefited. The merit of allegations which has though not been gone into by this court may or may not reveal a case of strong suspicion of commission of offence punishable u/Sec. 13(1)(d) & 13(2) of the PC Act. If any strong suspicion arises then failure to grant liberty to the trial court to look into this aspect would be allowing an offence to go untried and if proved unpunished. This would be de hors the very fundamentals of criminal jurisprudence.

9. Further submission of the learned counsel for prosecution is that impugned charges have been added/altered in exercise of liberty extended by judicial order dated 12/2/2014 in Cr.Rev. 937/2013 and order dated 3/12/2014 in Cr.Rev.343/14 and therefore no fault can be found with the impugned order. 9.1 This submission is taken to be rejected at the the very outset 16 Mcrc 8223/2020 as the order dated 12/2/2014 of the Division Bench of this Court had been passed much prior to the decision rendered on 12/8/2014 in P. Kartikalakshmi (supra). As regards subsequent order of Division Bench of this court dated 3/12/2014 in Cri. Rev. 343/2014 though the decision in P. Kartikalakshmi (supra) has been rendered by Apex court prior to passing of the order in criminal revision 343/2014 but due to ignorance of the decision of P. Kartikalakshmi (supra) which may not have been published in the legal journals, the Division Bench of this court while deciding Cr.Rev. 343/14 was un-aware of the law laid down by the Apex Court. Even otherwise, the contrary decision rendered subsequent to P. Kartikalakshmi (supra) fades into insignificance having no precedential value and thus the Division Bench order dated 3/12/2014 is of no avail to the prosecution.

10. Consequently, this court deems it appropriate to allow this petition in following terms:-

(1) The impugned order of learned trial court dated 14/5/2019 passed by First Additional Sessions Judge, Gwalior (M.P.) in SST 2/2013 allowing an application preferred by prosecution u/Sec. 216 Cr.P.C. is quashed.

(2) The trial court is at liberty to suo motu exercise it's jurisdiction if facts & circumstances justify such invocation based on the interpretation 17 Mcrc 8223/2020 given by Apex court to the scope, sweep and content of Sec. 216 Cr.P.C. in P. Kartikalakshmi (supra) and Dr. Nallapareddy Sridhar Reddy (supra).

11. Let a copy of this order be sent to the trial court concerned for information and necessary compliance.

No cost.




                          (Sheel Nagu)                   (Rajeev Kumar Shrivastava)
                             Judge                                 Judge
                            02/3/2020                            02 /3/2020

             (Bu)
DHANANJAY
BUCHAKE
2020.03.05
13:03:51
+05'30'

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