Punjab-Haryana High Court
Chander Parkash vs State Of Haryana on 16 February, 2016
Author: Anita Chaudhry
Bench: Anita Chaudhry
Crl. Misc. No.M-5139 of 2016 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Misc. No.M-5139 of 2016 (O&M)
Date of decision : 16.02.2016
Chander Parkash
......Petitioner(s)
Versus
State of Haryana
...Respondent(s)
CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. Sanjay Vashishth, Advocate
for the petitioner.
****
ANITA CHAUDHRY, J(ORAL) This is a petition filed under Section 482 Cr.P.C. for quashing order dated 02.01.2016, passed by Judicial Magistrate 1st Class, Kosli and the order passed in the revision decided on 03.02.2016. The petitioner was seeking recall and re-examination of the prosecution witnesses after amendment of the charge.
Brief facts are necessary. Regarding an incident of assault on 06.05.2012, FIR no. 29 was registered at Police Station Jatusana. Challan was submitted and charge under Section 323, 354, 506 IPC was framed. The prosecution had examined their entire evidence. Statement of the accused was recorded on 06.06.2015. The accused examined 7 witnesses when it realized error in the charge dated 03.08.2012 and filed an application seeking amendment of the charge and opportunity to cross-examine the SUNIL SEHGAL 2016.02.24 10:40 I attest to the accuracy and authenticity of this document HIGH COURT CHANDIGARH Crl. Misc. No.M-5139 of 2016 (O&M) 2 witnesses. It was pleaded therein that the allegations were that he had tried to outrage the modesty of the daughter of the complainant on 02.05.2012 and the incident was narrated to the mother on 05.05.2012 but in the charge-sheet, the incident was alleged to be on 06.05.2012. The Court amended the charge vide order dated 02.01.2016. While amending the charge, Section 325 IPC was added. The petitioner again approached the Court with an application seeking opportunity to cross-examine the witnesses. That request was declined on 02.01.2016. A revision was preferred which was dismissed by the Revisional Court on 03.02.2016. Against those orders, the petitioner had filed this petition under Section 482 Cr.P.C.
I have heard the counsel for the petitioner at length. Detailed reference was also made to the various orders passed by the Courts below.
The counsel contends that since the date had been corrected and the Court had realized that there was a fracture and charge under Section 325 IPC was framed but no opportunity of cross-examination subsequent to the framing of charge was given which has resulted in prejudice. It was urged that there was no delay on his part and the Court had given almost two years for the prosecution to lead its evidence and the defence was granted only two months and there was no intention to delay the trial and opportunity should have been granted after the charge was amended and it had resulted in prejudice. It was also submitted that the radiologist had not been examined and after the addition of the SUNIL SEHGAL charge, recall of the witnesses was necessary. Reliance was placed 2016.02.24 10:40 I attest to the accuracy and authenticity of this document HIGH COURT CHANDIGARH Crl. Misc. No.M-5139 of 2016 (O&M) 3 upon a judgment of this Court reported as Amarjit Singh Vs. State of Punjab in CRM-M-7158-2011, decided on 09.04.2013 and Bhimanna Vs. State of Karnataka 2012 AIR (SC) 3026.
Annexure P-1 is the FIR which was registered on 06.05.2012. The date of occurrence mentioned therein is 02.05.2012. The child had narrated the incident to the mother on 05.05.2012 and the FIR was lodged the next day. While framing charge on account of inadvertent mistake, the date of the incident was mentioned as 06.05.2012. The witnesses had spoken of the incident that was three days prior to the lodging of the FIR. Therefore, there was no mistake so far as the date of occurrence was concerned nor the accused was misled. It was only a clerical mistake which was corrected.
In the First Information Report, the complainant had also alleged that he had gone to the shop of Chander but could not meet him but when he was returning he met him on the way and a scuffle ensued and Chander attacked him with a wooden log which caused injury on his hand and he had suffered injury.
The prosecution had examined Dr. Pankaj Yadav who had also referred to the x-ray report and had proved report Ex.PW1/D. The accused had cross-examined the witness at length. Dealing with the application, the Judicial Magistrate had observed as under:-
"In the last para of above mentioned application, defence side had asked for an opportunity to cross examine the witnesses as per Section 217 Cr.P.C. however I am of the considered opinion that the defence side was in full knowledge that the allegations attracting Section 354 IPC were of dated 02.05.2012 and defence SUNIL SEHGAL 2016.02.24 10:40 I attest to the accuracy and authenticity of this document HIGH COURT CHANDIGARH Crl. Misc. No.M-5139 of 2016 (O&M) 4 has set up their defence that this addition and alteration of charge would not prejudice the accused in any manner and there is no need to recall the prosecution witnesses for further cross examination, therefore, request made under Section 217 Cr.P.C. is dismissed. It is pertinent to mention here that the inadvertent mistake in the earlier charge sheet dated 03.08.2013 had also gone till recording statement of accused under Section 313 Cr.P.C. on 06.06.2015, therefore, after altering the charge and in light of my above discussion, statement of accused under Section 313 Cr.P.C. is recorded again in the interest of justice. The accused has pleaded his innocence. On request, case is adjourned to 20.01.2016 for remaining defence evidence with last opportunity."
A revision was preferred against the order and the Sessions Judge referred to the relevant provisions and exhaustively dealt with the submissions put forth by the petitioner. The Sessions Judge, Rewari had observed as under:-
"Keeping in mind the scheme of the Act as detailed above, if we consider the case in hand it will be evident that the alteration and addition to the charge was made not only after the entire evidence of the prosecution had been closed but also after the defence had examined four witnesses. Since the court did not consider proper to order retrial, it had to proceed under Section 217 Cr.P.C. and for that purpose it had to consider the necessity of recalling those witnesses whose statements were relevant with reference to the addition/alteration. After going through the record I am of the view that the learned trial court performed its duty properly. The fact remains that at no stage of trial was the accused under the impression that the charge under Section 354 IPC was in respect of 6.5.2012, as wrongly mentioned. He appears to be under impression throughout that it pertained 2.5.2012. This is why he led defence to prove his alibi that on 2nd and 3rd 2012 May he was not in his village. In so far as the additional charge under Section 325 IPC is concerned, it appears that the allegations were clear from the beginning. The MLR and radiological examination report of the injured were already on record. Even when the doctor appeared in the witness box as PW1 he proved both reports and opined that the SUNIL SEHGAL 2016.02.24 10:40 I attest to the accuracy and authenticity of this document HIGH COURT CHANDIGARH Crl. Misc. No.M-5139 of 2016 (O&M) 5 injured had suffered fracture in left hand. Therefore, at no stage was the accused under the impression that there were no allegations against him under section 325 IPC. Resultantly it can be safely concluded that the addition of charge under Section 325 IPC has not caught him by surprise. Learned trial court after considering these aspects in detail declined the request to recall the witnesses but instead of saying that the request to recall or re-examine the witnesses was for the purpose of vexation or delay it observed that the addition or alteration of charge would not prejudice the accused in any manner. Needless to say that this was a relevant consideration under Section 216 Cr.P.C. and not under Section 217 Cr.P.C. But still the conclusion arrived by the learned trial court in declining the request for re-calling/re-examination of the witnesses cannot be faulted for the reasons explained above. Needless to say that acceding to the request would mean delaying the proceedings. This being the position, no interference in the order under challenge is warranted. The petition is, therefore, dismissed. Order be certified to the learned trial court. Parties are directed to appear there on 9.2.2016. Trial court file be sent back. Revision file be completed and be consigned."
The issue raised by the petitioner is whether the dismissal of the application and the revision has resulted in great prejudice to the petitioner. Both the Courts below had dealt with the question of prejudice and had held that no prejudice was caused to the accused nor they were mis-led. A wrong date was mentioned in the charge but they knew that the incident related to 2nd May and therefore, they had led evidence to raise the plea of alibi. With respect to the additional charge framed under Section 325 IPC, it was observed that the allegations were clear from the beginning and the radiological examination report and the MLR were already on record and the doctor who had appeared as PW1 had proved both the reports. Therefore, at no stage the accused could be said to be under an SUNIL SEHGAL 2016.02.24 10:40 I attest to the accuracy and authenticity of this document HIGH COURT CHANDIGARH Crl. Misc. No.M-5139 of 2016 (O&M) 6 impression that there were no allegations against him under Section 325 IPC.
The petitioner has been unable to show that the amendment in the charge has led to real prejudice to him. He was informed about the allegations, the date of incident was clear and it had not resulted in any prejudice to the complainant. He had defended himself properly and no interference is required.
The petition is dismissed in limine.
16.02.2016 (ANITA CHAUDHRY)
sunil JUDGE
SUNIL SEHGAL
2016.02.24 10:40
I attest to the accuracy and
authenticity of this document
HIGH COURT CHANDIGARH