Rajasthan High Court - Jaipur
Pawan Kumar vs State Of Rajasthan Through Pp on 9 August, 2016
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B.Criminal Revision Petition No.852/2014
(Pawan Kumar Vs. State of Rajasthan)
Date of Order ::::: 09.08.2016
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.A.K,Gupta for the petitioner.
Mr.Prakash Thakuria,Public Prosecutor for State.
Mr.D.K.Dixit, for the complainant.
The accused-petitioner has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 27.5.2014 passed by the Additional Sessions Judge, Karauli in Sessions Case No.58/2012 whereby the learned trial Court allowed the application under Section 216 Cr.P.C. filed by the respondent-complainant and ordered to frame additional charge against the petitioner for offence under Section 302 IPC.
Brief relevant facts for the disposal of this petition are that FIR No.339/2011 came to be registered against the petitioner and his other family members on 2.12.2011 at Police Station Sapotara (District Karauli) for the offences under Sections 498-A and 304-B IPC on the basis of a written report lodged by the respondent-complainant, father of the deceased wife of the petitioner and after investigation charge-sheet was filed against the petitioner only for the aforesaid offences. Charge was framed against the petitioner for the aforesaid offences and for offence under Section 4 of the Dowry Prohibition Act by the learned trial Court vide order dated 30.4.2012. During the course of trial statements of as many as thirteen prosecution witnesses were recorded and at this stage the aforesaid application under Section 216 Cr.P.C. came to be filed on behalf of the respondent and the learned trial Court after hearing both the 2 parties by way of impugned order allowed the same as already stated. Feeling aggrieved, the petitioner is before this Court by way of this criminal revision petition.
In support of the petition, learned counsel for the petitioner submitted as below:-
(1) In this case the application under Section 216 Cr.P.C. has been filed by the respondent-complainant whereas it is well settled legal position that in a criminal case instituted on the basis of FIR and investigation undertaken by police, the complainant/victim has no locus standi to participate in the trial of such a case and, therefore, the complainant was not entitled to move such an application and the same was liable to be dismissed as not maintainable but the learned Court below without considering this aspect of the matter allowed the same and the impugned order is liable to be set aside and quashed on this ground alone. It is further well settled that in a police case the complainant/victim of the crime at the most assist the Public Prosecutor to conduct the trial in a proper manner but he has no independent right either to actively participate in it or to move any application before the trial Court. (2) The application was filed by the respondent only by the reason that Hon'ble Supreme Court vide order dated 22.11.2010 passed in Criminal Misc.Petition No.23051/2010 (Rajbir @ Raju and Anr. Vs. State of Haryana) directed all the trial Courts in India to ordinarily add Section 302 IPC to the charge under Section 304-B IPC but the aforesaid Criminal Misc.Petition was finallly dismissed by the Hon'ble Court vide order dated 5.2.2011 finding no merit in the petition. As soon as the aforesaid petition was dismissed by the Hon'ble Court on merit vide order dated 5.9.2011, 3 the prior order dated 22.11.2010 merged in it and the order dated 22.11.2010 lost its binding nature and the trial Court was not entitled to add charge under Section 302 IPC against the petitioner.
(3) Otherwise also, Hon'ble Supreme Court in the case of Jasvinder Saini & Ors. Vs. State (Govt. Of NCT of Delhi) reported in AIR 2014 SC 841, has held that charge under Section 302 IPC cannot be framed against a person accused of offences under Sections 498-A and 304-B IPC mechanically without adverting the evidence adduced in the case whereas in the present case no evidence has come on record showing commission of offence under Section 302 IPC by petitioner even prima facie.
(4) It is well settled legal position that to frame charge for an offence it is not sufficient only to show prima facie case is made out against the accused but the legal requirement is that there must be strong suspicion against the accused showing his involvement in the incident for which he has been made accused and there is likelihood of his conviction but in the present case, neither from the evidence collected during investigation nor from the evidence produced during the course of trial the aforesaid requirement can be said to be fulfilled.
(5) Learned Court below has wrongly observed in the impugned order that it was for the petitioner to explain under Section 106 of the Evidence Act how the deceased died, from where the poison was procured by which the death was caused and how it was administered to the deceased as these facts can only be within the knowledge of the petitioner. This observation of learned Court below is against the well settled legal position to the effect that in criminal cases it is for the prosecution to prove charge 4 against an accused beyond reasonable doubt.
(6) It is an admitted fact that there is no eye witness of the incident and the entire prosecution case is dependent on circumstantial evidence and there is no sufficient evidence on record showing even prima facie that the deceased was murdered by petitioner or any other person. (7) In such a case two contradictory stands cannot be taken by the prosecution one of "dowry death" and other of murder. On the basis of written report lodged by the respondent-complainant, FIR was registered for offences under Sections 498-A and 304-B IPC treating the death of the deceased as "dowry death" and after investigation also the case was found to be of dowry death and, therefore, charge-sheet for the same offences was filed and charges were also framed for the same offences and, therefore, during the course of trial the prosecution/complainant was not entitled to change its stand and to make prayer that the deceased was murdered by the petitioner.
On the other hand, learned Public Prosecutor assisted by the counsel for the complainant submitted as below:-
(1) Although, the respondent filed the application under Section 216 Cr.P.C. with the averment that Hon'ble Supreme Court by way of aforesaid order has directed all the trial Courts in India to add charge for offence under Section 302 IPC in a case in which charge for offences under Sections 498-A and 304-B IPC are framed against an accused but the learned Court below has not added the charge for offence under Section 302 IPC on the basis of such direction alone but after considering the evidence made available on record during the course of trial and after following the principle of law laid down by Hon'ble Supreme Court in the 5 case of Jasvinder Saini and Ors. Vs. State (Govt. Of NCT of Delhi) (supra).
(2) Sufficient evidence is available on record to frame charge for offence under Section 302 IPC also against the petitioner and learned trial Court has rightly observed that burden is on the petitioner under Section 106 of the Evidence Act to explain how the poison was procured which caused death of the deceased, how it was administered to the deceased as from the evidence available on record it is shown that the cause of death is poison namely aluminium phosphide and at the time of incident petitioner was also present alongwith the deceased and the bottle of poison was not found at the place of incident when it was inspected by the police during the course of investigation.
(3) An application under Section 216 Cr.P.C. in police case cannot be dismissed merely by the reason that it was not moved by the Public Prosecutor. An application under this provision is in a way bringing to the notice of the Court that charge for an offence is required to be added and even the Court can suo-moto add or alter a charge under this Section. In the present case, the respondent has not sought permission of the Court below that his advocate may be allowed to conduct the trial.
I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law.
Hon'ble Supreme Court recently in the case of Anant Prakash Sinhar alias Anant Sinha Vs. State of Haryana & Anr. reported in (2016) 6 SCC 105 after considering Section 216 Cr.P.C. and several previous decisions has held that:
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"From the aforesaid, it is graphic that 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 comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Cr.P.C."
It is thus, clear that the Court can add or amend a charge at any time before pronouncement of judgment if from the material available on record it is found that it needs to be done so and it is not necessary to advert each and every circumstance.
In this case it has also been held that the Court can exercise its discretion under this provision suo-moto and if application to that effect is filed by the informant it is in a way bringing to the notice of the Court about the defect in framing of the charge. From the facts of the aforesaid case it is apparent that the complainant-informant filed an application under Section 216 Cr.P.C. with a prayer that additional charge for offence under Section 406 IPC is to be framed against the accused. One of the ground of challenge to the order passed by the Magistrate before Hon'ble Supreme Court was that the informant-complainant had no jurisdiction to file such an application and the same was liable to be dismissed on that ground alone but the submission made on behalf of the accused was not accepted by the Hon'ble Court.
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The Constitution Bench of Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab & Ors. reported in (2014) 3 SCC 92, although mainly dealt with the provisions of Section 319 Cr.P.C. but at the same time the requirement to frame charge against an accused for an offence was also considered and in this regard in para 100 of the report it was observed that however, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 329, 240, 241, 242 and 245, has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be inquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for court to proceed against the accused further.
Hon'ble Constitution Bench further observed that at the stage of framing of charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
If in the light of the aforesaid principles of law the impugned order is considered, none of the grounds raised on behalf of the petitioner to assail it is legally tenable. From the material available on record and the reasons recorded by the learned Court below in support of the impugned 8 order reveals that the same has not been passed merely on the basis of order dated 22.11.2010 passed by the Hon'ble Supreme Court in the case of Rajbir @ Raju and Anr. Vs. State of Haryana (supra), but after considering the evidence produced by the prosecution during the course of trial after following the principle of law laid down by the Hon'ble Supreme Court in the case of Jasvinder Saini and Ors. Vs. State (Govt. Of NCT of Delhi) (supra). In my view no illegality has been committed by the court below by observing that it was for the petitioner to explain how the deceased died, from where the poison was procured by which her death was caused and how it was administered to the deceased as these facts can only be within the special knowledge of the petitioner as from the evidence available on record it is prima facie shown that the cause of death is by poison (aluminium phosphide) and at the time of incident petitioner was also present alongwith the deceased and the bottle of poison was not found at the place of incident when it was inspected by the police during the course of investigation. If the deceased herself consumed the aforesaid poison, then how the bottle in which the poison was contained was removed from the place of incident, is a fact which can be determined only after evidence is led by the parties during the course of trial but it is a material fact relevant to frame charge for offence under Section 302 IPC. I am of the view that the learned court below after referring the material available on record and recording his prima facie satisfaction has exercised its discretion under Section 216 Cr.P.C. to frame additional charge for offence under Section 302 IPC against the petitioner. There is no error in it requiring interference by this Court. 9
Consequently, the revision petition being devoid of any merit and is, hereby, dismissed. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam (Reserved order)