Calcutta High Court (Appellete Side)
699/2013 on 12 March, 2013
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
1 12.03.2013
C.R.R. 699 of 2013 gd Mr. Tapan Dutta Gupta ..for the Petitioner The present petition has been filed to assail order dated 21st August, 2012 whereby charges were framed against the petitioner for offence under section 376 IPC.
A grievance has been made that earlier charges were framed against the petitioner for offence under sections 363/120B IPC and 368/120B IPC on 13th August, 2003.
Thereafter an application was filed on 12th January, 2010 that charge under section 376 IPC be formulated against the accused.
Counsel submits that application was rejected. However, on 29th July, 2011 the Judicial Magistrate, 4th court, Purulia after going through the record came to a conclusion that offence under section 376 IPC is made out and hence the court invoked powers under section 323 Cr.P.C. and committed the trial to the Court of Sessions.
The Court of Sessions on 21st August, 2012 had framed the charges under section 376 IPC.
Counsel for the petitioner stated that once the court has formulated charge under sections 2 363/368/120B IPC and had rejected the prayer of the prosecution for offence under section 376 IPC, commitment of the case vide order dated 29th July, 2011 is bad in the eyes of law.
The argument raised by counsel for the petitioner is misplaced. Firstly, there is no challenge to order dated 29th July, 2011. The commitment proceedings have not been assailed by filing any revision. In the present petition, only order framing charge has been challenged.
Section 216 CR.P.C. specifically states that any Court may alter or add any charge at any time before judgment is pronounced.
Since the order of the commitment was not challenged and the same has attained finality, the Court of Sessions can alter the charge. In the present case there has been addition of charge under section 376 IPC.
Furthermore, Section 464 CR.P.C. specifically states that no finding or sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed.
Since earlier the Magistrate had not found that 3 the offence under section 376 IPC has been committed, the order framing charge by the Sessions Judge at later stage suffer from no infirmity in view of the provisions of Section 464 CR.P.C. read with Section 216 CR.P.C. Since the schedule has been fixed for evidence, it cannot be said that petitioner before trial has not been acquainted with the charge. No ground of prejudice has been raised. Only competence of the court to alter or add charge has been questioned. As already observed the court in furtherance of justice can always alter or add charge in view of the provisions of Section 464 CR.P.C. read with Section 216 CR.P.C. Hence, there is no merit in the petition and same is dismissed.
(Kanwaljit Singh Ahluwalia, J.) 4