Madras High Court
R.Solairaj vs The State on 31 March, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.R.C(MD)No.36 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 31.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.36 of 2022
and
Crl.M.P(MD)No.831 of 2022
R.Solairaj ... Petitioner/Defacto Complainant/P.W.1
Vs.
1.The State,
Represented by,
The Inspector of Police,
Town Police Station,
Aruppukottai,
Virudhunagar District.
(S.C.No.39 of 2012) ... 1st Respondent/Complainant
2.V.Periyasamy
3.Solaiappan
4.Ravichandran
5.K.Velraja
6.S.Mathankumar
7.K.Sathivel ... Respondents 2 to 7/Accused
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records relating to
withdraw and recall the order passed by the learned Additional
Sessions Judge, Virudhunagar in S.C.No.39 of 2012, dated
27.09.2021 and to set aside the same and to direct the learned
Additional Sessions Judge, Virudhunagar to alter and frame the
fresh charges against accused Nos.4 and 6 under Section 302 r/w
34 of I.P.C, dated 22.01.2020.
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Crl.R.C(MD)No.36 of 2022
For Petitioner : Mr.C.Mayil Vahana Rajendran
for Mr.T.Chandra Sekaran
For R – 1 : Ms.M.Aasha
Government Advocate (Crl. Side)
For RR 2 & 4 : Mr.G.Mariappan
For RR 3, 5 & 6 : Mr.R.Gandhi
For R – 7 : Mr.G.Prabhu Rajadurai
ORDER
This revision is arising out of the order passed in S.C.No.39 of 2012, dated 27.09.2021, on the file of the learned Additional Sessions Judge, Virudhunagar, thereby withdrawn the notice issued to the accused with regard to alteration of charges.
2.The petitioner is the complainant. He lodged a complaint alleging that on 17.06.2011, at about 05.45 p.m., the brother of the petitioner came to his shop and thereafter, he left from the shop by his cycle. At that time, all the accused persons surrounded his brother and shouted that he is interfering in the affairs and creating problems. Immediately A.4 stabbed the deceased on his chest with a knife and A.6 stabbed on his cheek with knife. The deceased fell down and died on the spot. It was registered in Crime No.984 of 2011 for the offences under Sections 147, 148, 341 and 302 of https://www.mhc.tn.gov.in/judis 2/12 Crl.R.C(MD)No.36 of 2022 I.P.C. After completion of investigation, the first respondent filed a final report and the same has been taken cognizance in S.C.No.39 of 2012 on the file of the learned Additional Sessions Judge, Virudhunagar and the final report has been filed as against the juvenile before the Juvenile Justice Board and the same has been taken cognizance in J.C.No.82 of 2013 on the file of the Juvenile Justice Board, Virudhunagar.
3.There are totally six accused in which the trial Court framed charges for the offence under Section 147 of I.P.C as against A.1 to A.3, for the offence under Section 148 of I.P.C as against A.1 and A.2, for the offence under Section 341 of I.P.C as against A.1 to A.3, for the offence under Section 342 of I.P.C as against A.2 and A.3, for the offence under Section 149 r/w 302 of I.P.C as against A.1 to A.3, for the offence under Section 307(1)(2) of I.P.C as against A.2, for the offence under Section 324 of I.P.C as against A.2 and for the offence under Section 120(b) r/w 302 of I.P.C as against A.4 to A.6.
4.After examination of prosecution witnesses, the petitioner filed a petition in Cr.M.P.No.1317 of 2017 under Section 216(1) of Cr.P.C to add further charges, that too, after filing the written arguments on either side on the ground that the evidence of P.W.1 https://www.mhc.tn.gov.in/judis 3/12 Crl.R.C(MD)No.36 of 2022 and P.W.2 would disclose that all the accused persons formed an unlawful assembly waylaid the deceased while he was riding his bicycle. A2, A.4 and A.5 shouted that the deceased is interfering in their affairs and creating problems. So instigated others to kill the deceased. Immediately A.4 stabbed the deceased with his knife in the centre of the chest and A.6 stabbed the deceased on his chin with knife. Immediately the deceased fell down and lost his breath. The above overt act is attributed by P.W.1 and P.W.2 in their evidence which closely and distinctly established the charges under Sections 147, 148, 149, 341, 302, 109 of I.P.C r/w 34 of I.P.C. Therefore for proper appreciation of evidence, the charge should be framed against all the accused persons to be altered. The trial Court by order dated 22.12.2017 dismissed the said petition for the reason that the petition filed under Section 216 of Cr.P.C can be invoked by a criminal Court at any time before the judgment is delivered, if the circumstances warrant, and that Section 216 of Cr.P.C does not enable or empower the prosecution or the accused or the defacto complainant to require the Court to exercise such power. Aggrieved by the same, the petitioner did not prefer any revision. While being so, on 22.01.2020, the trial Court issued show cause notice to Accused Nos.1 to 6 as to why the additional charges should not be framed in the interest of justice. On receipt of the https://www.mhc.tn.gov.in/judis 4/12 Crl.R.C(MD)No.36 of 2022 same, all the accused persons filed their objections. On receipt of the objections, the trial Court passed the impugned order thereby withdrawn the show cause notice issued to the accused persons and decided not to frame additional charges, since it would amount to second trial for the very same set of charges.
5.The learned counsel appearing for the petitioner would submit that P.W.1 and P.W.2 disclose that A.4 stabbed the deceased on his chest with a knife and A.6 stabbed the deceased on his chin with a knife and as such, the deceased sustained grievous injury and died. Therefore, the trial Court ought to have framed proper charges as against A.4 and A.6 for the offence under Section 302 of I.P.C r/w Section 34 of I.P.C. He further submitted that the prosecution has to prove the case against the manner stated by it any act or omission on the part of the prosecution giving rise to any reasonable doubt would go to in favour of the accused, yet in a case like the present case, the investigation and record shows that the investigating officer created a mess by defective and lap sided investigation or deliberately omitted to do what ought done for any extraneous reason. Section 216 of Cr.P.C has given power to the trial Court that even after the completion of arguments before delivering the Judgment, it can alter or add to any charge subject to https://www.mhc.tn.gov.in/judis 5/12 Crl.R.C(MD)No.36 of 2022 the conditions. The same trial Court satisfied with the deposition of P.W.1 and P.W.2 and issued show cause notice and the same Court, without reasons, mechanically withdrawn the show cause notice issued on the accused persons. He further submitted that the withdrawal of show cause notice would amount to review of the order and it is not permissible under Section 362 of Cr.P.C. The trial Court does not have the power to review the Judgment and order once passed except to correct the clerical or arithmetical error. In support of his contention, he relied upon the following Judgments of the Honourable Supreme Court of India:-
(i) State of Maharashtra Vs. Salman Salim Khan and another reported in 2004 (1) Crimes 172 (SC).
(ii) Babu alias Balasubramaniam and another Vs. State of Tamil Nadu reported in (2013) 8 SCC 60.
(iii) Nallpareddy Sridhar Reddy Vs. State of Andhra Pradesh and others reported in 2020 (1) MWN (Cr.) 214 (SC).
The Honourable Supreme Court of India held that Section 216 of Cr.P.C provides the Court an exclusive and wide-ranging power to change or alter any charge. The use of the words “at any time https://www.mhc.tn.gov.in/judis 6/12 Crl.R.C(MD)No.36 of 2022 before judgment is pronounced” in sub-Section (1) empowers the Court to exercise its power of altering or adding charges even after completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the Court there was an omission in the framing of charges 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.
6.The learned counsel appearing for the respondents 2 & 4, the learned counsel appearing for the respondents 3, 5 and 6 and the learned counsel appearing for the seventh respondent contended that on receipt of the show cause notice to frame additional charges, the respondents 2 to 6 filed objections in the form of memo. After considering their objections, the trial Court rightly withdrawn the show cause notice, since it would amount to second trial for the very same set of charges.
7.Heard the learned counsel appearing for the petitioner, the learned Government Advocate (Criminal Side) appearing for the first respondent, the learned counsel appearing for the respondents 2 & 4, the learned counsel appearing for the respondents 3, 5 and 6 and https://www.mhc.tn.gov.in/judis 7/12 Crl.R.C(MD)No.36 of 2022 the learned counsel appearing for the seventh respondent and perused the materials available on record.
8.The trial Court issued show cause notice to the accused persons to frame additional charges. In fact, the petitioner already filed a petition under Section 216 of Cr.P.C in Cr.M.P.No.1317 of 2017 on the very same set of allegations on the strength of the depositions of P.W.1 and P.W.2 and the same was dismissed on 22.12.2017. Aggrieved by the same, the petitioner failed to prefer any revision or appeal. The prosecution also did not prefer any appeal as against such order of rejection filed under Section 216 of Cr.P.C. After filing the written arguments, the trial Court issued show cause notice calling for the objection if any from the accused. The accused filed objections. It is true that the trial Court can alter or add to any charge at any time before passing judgment. The trial already completed and the entire defence had been exposed by the accused persons. Adding of a new charge on the side of existing materials will amount to a new trial which is barred under Section 300 of Cr.P.C, since the accused persons were not informed about the proposed alternative and amendment of fresh charges. Therefore the trial Court rightly withdrawn its show cause notice on the accused persons. In this regard it is relevant to rely upon the https://www.mhc.tn.gov.in/judis 8/12 Crl.R.C(MD)No.36 of 2022 Judgment of the Honourable Supreme Court of India in the case of P.Karthikalakshmi Vs. Sri Ganesh and another reported in 2017 (2) SCC (Crl.) 84, in which the Honourable Supreme Court of India held that the provision under Section 216 of Cr.P.C empowers the Court to alter or add any charge at any time before judgment is pronounced. The power vested in the Court is exclusive to the Court and there is no right in any party to seek for addition or such alteration by filing any application as a matter of right. 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 of Cr.P.C to either alter or add the charge. 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. Whereas in the case on hand on the final report, the trial Court framed charges as follows:
“For the offence under Section 147 of I.P.C as against A.1 to A.3, for the offence under Section 148 of I.P.C as against A.1 and A.2, for the offence under Section 341 of I.P.C as against A.1 to A.3, for the offence under Section 342 of I.P.C as against A. 2 and A.3, for the offence under Section 149 r/w 302 of I.P.C as against A.1 to A.3, for the offence under Section 307(1)(2) of I.P.C as against A.2, for https://www.mhc.tn.gov.in/judis 9/12 Crl.R.C(MD)No.36 of 2022 the offence under Section 324 of I.P.C as against A. 2 and for the offence under Section 120(b) r/w 302 of I.P.C as against A.4 to A.6.”
9.After completion of prosecution witnesses, the petitioner already filed a petition under Section 216 of Cr.P.C in Cr.M.P.No.1317 of 2017 on the strength of the overt act attributed by P.W.1 and P.W.2 to add charge under Section 302 of I.P.C r/w Section 34 of I.P.C as against A.4 and A.6 instead of charge under Section 120(b) of I.P.C r/w Section 302 of I.P.C. As rightly pointed out by the learned counsel appearing for the respondents 2 to 7 already the accused exposed their defence for the charges framed against them respectively. Adding of new charge on the side of existing materials will amount to new trial. Therefore, the trial Court rightly passed the order and this Court finds no infirmity or illegality in the order passed by the Court below. Accordingly, this Criminal Revision Case is dismissed. The trial Court is directed to complete the trial within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.
31.03.2022
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.36 of 2022
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
To
1.The Additional Sessions Judge,
Virudhunagar.
2.The Inspector of Police,
Town Police Station,
Aruppukottai,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)No.36 of 2022
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.36 of 2022
31.03.2022
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