Kerala High Court
Reji vs State Of Kerala on 25 September, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 25TH DAY OF SEPTEMBER 2014/3RD ASWINA, 1936
Crl.Rev.Pet.No. 781 of 2014 ()
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CRL.A 124/2009 of THE ADDL. SESSIONS COURT (V), ERNAKULAM
CC 25/2006 of JUDL. FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM
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REVISION PETITOINER/APPELLANT/2ND ACCUSED:
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REJI, AGED 42 YEARS,
S/O.NARAYANAN, PLACKAL HOUSE, CHEMBANKUZHI KARA
NERIAMANGALAM VILLAGE.
BY ADV. SRI.S.DILEEP (KALLAR)
RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, COCHIN -31.
BY ADDL.D.G.P SRI. TOM JOSE PADINJAREKARA
BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
25-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
okb
"C.R."
K.HARILAL, J.
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Crl.R.P. No.781 of 2014
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Dated this the 25th day of September, 2014
ORDER
The revision petitioner is the 2nd accused in C.C. No.25/2006 on the files of the Judicial First Class Magistrate's Court, Kothamangalam, as well as the appellant in Crl.A. No.124/2009 on the files of the V Additional Sessions Judge, Ernakulam, and the respondent herein is the complainant. The offences alleged against the revision petitioner are under Section 378 read with Section 34 of the Indian Penal Code and Section 12(10) read with Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short 'the Act').
2. The case of the prosecution is that in furtherance of the common intention to commit theft, on 18/8/2005 at about 2.30 p.m. the 1st and 2nd accused together committed theft of river sand worth Rs.1,000/- from the Periyar River at a place called 'Chembankuzhi' and loaded the sand in the lorry bearing registration No.KL-07-B-6564 and thereby the accused have Crl.R.P.781/14 :2:
committed the offences alleged against them. After hearing the prosecution and defence, the court framed charges against the revision petitioner for the offences punishable under Section 379 read with Section 34 of the IPC and under Section 12(10) read with Section 20 of the Act.
3. The revision petitioner entered appearance and pleaded not guilty. On the side of the prosecution, C.Ws.1 and 3 were examined and Exts.P1 and P2 and M.O.1 were also marked. The revision petitioner was questioned under Section 313(1)(b) of the Cr.P.C. and he denied the entire charge framed against him. After considering the evidence on record, the learned Magistrate found that the petitioner is not guilty of the offences punishable under Section 378 of the IPC and Section 12(10) read with Section 20 of the Act; but found that the petitioner is guilty of the offence punishable under Rule 48K read with Rule 58(1) of the Kerala Minor Mineral Concession Rules, 1967 and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of one month. Though the petitioner had preferred the above Criminal Appeal, after re-appreciating the entire evidence on record, the learned Sessions Judge also confirmed the Crl.R.P.781/14 :3:
findings of the conviction; but modified the sentence. The substantive sentence of simple imprisonment for six months was reduced and modified to simple imprisonment for 3 months and sustained the rest of the sentence as such, without any interference. The legality and propriety of the impugned judgments are under challenge in this Revision Petition.
4. Though this Revision Petition has been filed on various grounds, the learned counsel for the revision petitioner has mainly canvassed two points. Firstly, the learned counsel contended that the court below has erred in making a searching enquiry after finding that the petitioner is not guilty of the offences for which he was charge sheeted and found out another offences for which no charge was framed against him. Thereafter, the court below found the revision petitioner guilty of the offences for which no charge was framed as provided under law. Secondly, the cognizance of offence for which the petitioner was convicted was taken by an Officer, who was not authorised to take cognizance under Section 59 of the Rules.
5. Per contra, the learned Additional Director General of Prosecutions advanced arguments to justify the conviction imposed on the revision petitioner. Even though no charge was framed for the offences under which the revision petitioner was Crl.R.P.781/14 :4:
convicted, according to him, the conviction can be justified under Sections 464 and 465(2) of the Code of Criminal Procedure, 1973. It is also submitted that in view of Section 464 of the Cr.P.C., no finding sentence shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge. Therefore, the court below can be justified in convicting the revision petitioner under Rule 48K of the Rules instead of Section 20 of the Act, for which the charge was framed.
6. The learned Additional Director General of Prosecutions further submitted that the offence under Section 12(10) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act is a major offence when comparing with the offence under Rule 48K of the Kerala Minor Mineral Concession Rules. In the former case, punishment is imprisonment extending upto 2 years, whereas in the latter case, punishment is imprisonment extending upto one year or with a fine which may extend to five thousand rupees or with both. The learned Additional Director General of Prosecutions has pointed out this aspect also. According to him, the accused can be convicted of the minor offence invoking power under Crl.R.P.781/14 :5:
Section 222 of the Cr.P.C., though he was not charged with it.
7. In view of the rival contentions debated at the Bar, the question that emerges for consideration is, whether the revision petitioner, who was charge sheeted for the offences punishable under Section 378 of the IPC and Section 12(10) read with Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, can be convicted for the offence punishable under Rule 48K of the Kerala Minor Mineral Concession Rules, 1967, after arriving at a finding that he is not guilty of the former offences for which he was charge sheeted, without altering the charge to the latter offence and reading and explaining the altered charge to him? Put it generally, the question is, whether the accused, who was charged for an offence under a particular Act, can be convicted for another offence under a different Act, for which he was not charged with, without altering the charge to the latter offence and reading and explaining the altered charge to him, where the particulars of the facts constituting the offence are different?
8. Going by Section 464 of the Cr.P.C., it could be seen that, as rightly submitted by the learned Additional Director General of Prosecutions, no finding sentence shall be deemed to be invalid merely on the ground that no charge was framed, or Crl.R.P.781/14 :6:
on the ground of any error or omission or irregularity in the charge including any misjoinder of charges, unless a failure of justice has, in fact, been occasioned thereby. Admittedly, no charge alleging any of the offences under the Kerala Minor Mineral Concession Rules was framed. But the charge was framed under Section 378 of the IPC and Sections 12(10) and 20 of the Act; but, thereafter, convicted him for the offence under Rule 48K of the Kerala Minor Mineral Concession Rules, 1967. In fact, it stands undisputed that the prosecution has no case that any of the offences under the Kerala Minor Mineral Concession Rules has been committed by the revision petitioner.
So, charge under Sec.48K of the Minor Mineral Concession Rules could not have been framed. If that be so, non-framing of charge under Rule 48K of the above Rule cannot be considered as an omission or error or irregularity. Thus, on an analysis of the factual matrix, in view of the above provision, I find that the second limb of the provision has no application in the instant case. So, I am not inclined to accept the argument advanced by the learned Additional Director General of Prosecutions under Section 464 of the Cr.P.C.
9. Coming to the second point raised by the learned Additional Director General of Prosecutions, let us examine the Crl.R.P.781/14 :7:
general rule governing alteration of charge. Going by Section 216(1) of the Cr.P.C., it is seen that any Court may alter or add to any charge at any time before judgment is pronounced. Further, Section 216(4) of the Cr.P.C. states that if the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the 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. Needless to say, Section 216(4) of the Cr.P.C. provides an opportunity to have a new trial after the alteration of a former charge to an altered charge.
10. According to Section 217 of the Cr.P.C., the statutory mandate is that whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice and also to call any further witness whom the Court may think to be material.
Crl.R.P.781/14 :8:
11. In short, after the alteration of the charge, an opportunity shall be provided to both prosecution as well as accused unless the Court finds that the recalling or re- summoning of the witness who has been examined earlier was not with an intent to delay or defeat the ends of justice. Thus, the sum and substance of Sections 216 and 217 of the Cr.P.C. is that charge can be altered at any time provided that an opportunity must be given to both accused and the prosecution to adduce further evidence in accordance with the altered charge. This is the general rule to be observed in consequence of alterations of charge.
12. Certainly, as submitted by the learned Additional Director General of Prosecutions, here, I must remember and consider the enabling provision under sub-sections (1) and (2) of Section 222 of the Code of Criminal Procedure permitting to convict the accused for the minor offence, although he is not charged with it. Apparently, this provision appears to be an exception to the above general rule under Sections 216 and 217 of the Cr.P.C., which is referred above. It is apposite and profitable in this context to extract Section 222 of the Cr.P.C., which reads as under:
"222. When offence proved included in Crl.R.P.781/14 :9:
offence charged.-(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
13. Going by sub-sections (1) and (2), it could be seen that this provision permits conviction of the accused for an offence, though he was not charged with it, subject to the presence and satisfaction of the other statutory requirements under Section 222 of the Cr.P.C. What are the statutory requirements to invoke power under Section 222(1) of the Cr.P.C.?
Crl.R.P.781/14 :10:
(1) The offence charged against the accused must be one consists of several particulars.
(2) A combination of some only of that particulars must constitute a complete minor offence.
14. The purpose of reading charge is to make the accused aware of the act punishable under the law which he has committed so as to enable him to prove his innocence. The gist of the sub-section (1) of Section 222 of the Cr.P.C. is that, "Minor offence shall not be one constituted from particulars other than that which constitute major offence."
15. On a close analysis of sub-section (2), it could be seen that, when a person is charged with a major offence, and facts adduced in evidence prove a minor offence and that minor offence is one born out from the same charge, which was read over to him, he can be convicted for that minor offence, though he is not charged with it. In both circumstances under Section 222(1) and (2) of the Cr.P.C., charge of minor offence is seen implied and included in the charge of major offence, which was already read over to him. Put it differently, if the particulars of the facts constituting the minor offence are different from that of the major offence, which was framed and read over to him, the accused cannot be convicted for that minor offence without Crl.R.P.781/14 :11:
altering and reading the altered charge of the minor offence to him. In short, the particulars of the facts constituting the major offence and minor offence should have been same or the minor offence should have been constituted from some of the particulars of facts constituting the major offence. The particulars of the fact constituting the minor offence shall not be a different one for invoking the power under Section 222(1) and (2) of the Cr.P.C.; otherwise, it may cause gross miscarriage of justice by the deprivation of the opportunity of the accused to defend the altered charge.
16. Fair trial is a right that emanates from Article 21 of the Constitution of India. The accused has the right to know the offence with which he is charged and he should have been informed of the offence with which he is charged. What is envisaged under Sections 211, 212 and 213 of the Cr.P.C. is that the accused must be given notice of the full particulars of the offence with which he is charged. But, power under Section 222(1) and (2) is an exception to the above general Rule. This exceptional jurisdiction must be invoked with utmost care and caution and to the satisfaction of the requirements under Section 222 (1) of the Cr.P.C. The accused shall not be deprived of his right to get a fair trial in accordance with the procedure Crl.R.P.781/14 :12:
established by law, which is enshrined under Article 21 of the Constitution of India.
17. Let us consider the instant case, in view of the legal position analysed above. Indisputably, the offence under Rule 48K of the Kerala Minor Mineral Concession Rules, 1967, is a minor offence when comparing with the offence under Section 12(10) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Under Rule 48K of the Kerala Minor Mineral Concession Rules, the facts constituting the offence are removal or transportation of minor minerals without cash memorandum in Form-P prepared in duplicate duly with seal and signature of the competent authority. But, in the case of offence under Section 12(10) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, the facts constituting the offence are removal of sand from river or river banks where the Government have expressly prohibited the same by General or Special Order. On an analysis of the facts constituting the offence, it could be seen that the particulars of facts constituting the offence under Rule 48K of the Kerala Minor Mineral Concession Rules are different from that of the offence under Section 12(10) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act; ie. the offence Crl.R.P.781/14 :13:
under Rule 48 of the Kerala Minor Mineral Concession Rules is not one born out from some of the particulars of the facts constituting the offence under Section 12(10) of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.
18. In this analysis, I find that the revision petitioner could not have been convicted for the offence under Rule 48K of the Kerala Minor Mineral Concession Rules invoking the exceptional power under Section 222 of the Cr.P.C. without altering the charge and reading and explaining the altered charge under Rule 48K to the revision petitioner. The revision petitioner was totally unaware of the charge against him under Rule 48K of the Minor Mineral Concession Rules till the pronouncement of the judgment convicting him under the said Rule. Certainly, I am of the opinion that the revision petitioner had been deprived of his valuable right to know and defend the charge under which he was prosecuted.
19. The learned Additional Director General of Prosecutions drew my attention to Section 465(2) of the Cr.P.C. and contended that had there been any irregularity or omission or error in the charge, the revision petitioner should have raised it at an earlier stage of the proceedings. I am unable to accept Crl.R.P.781/14 :14:
the said argument. Firstly, the alteration of charge made in the instant case was neither an error nor an irregularity; but it was a substitution of charge. In case of alteration of charge by way of substitution, certainly, it should have been read over to the accused enabling him to invoke the rights provided under Section 217(a) and (b) of the Cr.P.C., where the minor offence is not born out from the particulars of the facts constituting major offence. Secondly, I have already held that the revision petitioner came to know the offence for which he was prosecuted only when the judgment was pronounced. If that be so, there is no force in the argument that he should have raised the objection before conviction. In short, the charge was altered and he was convicted behind his back.
20. In this analysis, I find that the accused, who was charge sheeted for a major offence under a particular Act, cannot be convicted for another minor offence under a different Act, for which he was not charged with, without altering the charge to the latter minor offence and reading and explaining the altered charge of minor offence to him, where the particulars of the facts constituting the minor offence are different from that of the former major offence. Thus, the conviction of the accused under Rule 48K of the Kerala Minor Crl.R.P.781/14 :15:
Mineral Concession Rules is vitiated by procedural irregularity and illegality.
21. Another point raised by the learned counsel for the revision petitioner is that the officer or the competent authority, who was authorised under Rule 59 of the Kerala Minor Mineral Concession Rules, has not filed a complaint alleging the offence under the above Rules. So, no cognizance could have been taken by the Court, for any offence, under the said Rules, against the petitioner. In short, the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. If that be so, the conviction entered under Rule 48K of the Kerala Minor Mineral Concession Rules is hit by sub-section(4) of Section 222 of the Cr.P.C. According to sub-section(4) of Section 222 of the Cr.P.C., conviction for a minor offence, for which the accused was not charged with is impermissible, where the conditions requisite for the initiation of the proceedings in respect of that minor offence have not been satisfied.
22. The court below has convicted the revision petitioner without a complaint alleging any offence under the Kerala Minor Mineral Concession Rules. Going by the impugned judgments under challenge, it is seen that either in the Crl.R.P.781/14 :16:
complaint or in the final report the prosecution has no case or allegation that the revision petitioner has committed any offence under the Kerala Minor Mineral Concession Rules. It follows that no cognizance of any offence under the said Rules was taken under Rule 59 of the above said Rules by the Court on the complaint filed by the Authorised Officer or the competent authority as provided under the Rules. But, the trial court convicted the revision petitioner for an offence for which no cognizance had been taken under Rule 59 of the Kerala Minor Mineral Concession Rules. I hold that, in the absence of any complaint and cognizance taken thereon, the Court has no power or jurisdiction to make a roving enquiry in search of a proper offence under any law for the time being in force to convict the accused, after arriving at a finding that the accused is not guilty of the offence for which he was charge sheeted. Thus, the trial court exercised the jurisdiction not vested in it; but, unfortunately, the Appellate Court also set the seal on the erroneous finding of the trial court.
23. In the light of the above discussions, I find that the conviction and sentence imposed by the trial court and confirmed by the Appellate Court are vitiated by illegality and impropriety.
Crl.R.P.781/14 :17:
24. In the result, the impugned judgments passed by the trial court and confirmed by the Appellate Court will stand set aside and the revision petitioner is acquitted of the offences found against him.
This Revision Petition is accordingly allowed.
Sd/-
(K.HARILAL, JUDGE) okb.
//true copy// P.A. to Judge