Allahabad High Court
Sonu @ Rajneesh Tiwari And 2 Others vs State Of U.P. And Another on 31 May, 2018
Equivalent citations: AIRONLINE 2018 ALL 2204
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 A.F.R. Case :- APPLICATION U/S 482 No. - 19724 of 2018 Applicant :- Sonu @ Rajneesh Tiwari And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjay Chaturvedi,Dharmendra Singhal,Shivendra Raj Singhal Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. Heard Sri Dharmendra Singhal, learned counsel for the applicants and Sri M.P. Singh Gaur, learned A.G.A. appearing for the State.
2. This is an application under Section 482 Cr.P.C. seeking to set aside the impugned order dated 22.05.2018 refusing to discharge the applicants from offences under Sections 147, 148, 149, 302, 506 read with Section 354A IPC and Section 7/8 of the Protection of Children from Sexual Offences Act, 2012, as well as the order dated 22.05.2018 formally framing charges under the aforesaid Sections, numbering six.
3. At the outset Sri Dharmendra Singhal, learned counsel for the applicants has confined his challenge to the charges framed under Sections 354A IPC and 7/8 of the POCSO Act and has not pressed his challenge in relation to other charges. He has also given up challenge to the order dated 22.05.2018 refusing discharge. It is submitted by him that the charges framed under the aforesaid Sections, particularly, the formal charges are bad because they lack material particulars as required by Section 212 Cr.P.C., such as the date, time and place of occurrence.
4. The two charges carried the in formal order framing charges dated 22.05.2018 being charges nos.5 and 6 relating to the applicants no.1, Sonu alias Rajneesh Tiwari, and, applicant no.2, Neeraj Tiwari read as follows (in Hindi vernacular):
^^5& ;g fd mijksDr frfFk ,oa le; ds iwoZ ogn xzke otgkW] Fkkuk&ckWlMhg jksM] ftyk cfy;k esa vkiyksxksa us oknh eqdnek ftrsUnz dqekj nqcs dh yM+dh jkfxuh nqcs dh yTtk Hkax djus ds vk'k; ls NsM+[kkuh djds vijkf/kd cy dk iz;ksx fd;kA vkiyksxksa dk mDr d`R; Hkk0na0la0 dh /kkjk&354, Hkk0na0la0 ds vUrxZr n.Muh; vijk/k gS] tks bl U;k;ky; ds laKku esa gSA 6& ;g fd mijksDr frfFk ,oa le; ds iwoZ ogn xzke otgkW] Fkkuk&ckWlMhg jksM] ftyk cfy;k esa vkiyksxksa us oknh eqdnek ftrsUnz dqekj nqcs dh vo;Ld yM+dh jkfxuh nqcs ds lkFk ySfxad geyk fd;kA vkiyksxksa dk mDr d`R; Hkk0na0la0 dh /kkjk&7@8 ikDlks ds vUrxZr n.Muh; vijk/k gS] tks bl U;k;ky; ds laKku esa gSA**
5. The submission of the learned counsel for the applicants is that the charge under Section 354A IPC and that under Section 7/8 of the POCSO Act, the time, place and date are not mentioned and are so vaguely described that the same do not give reasonable and sufficient notice to the accused of the offence with which they are charged. It is submitted that in the absence of a reasonable and sufficient notice of the matter with which the applicants are charged, the applicants would be seriously prejudiced in the matter of their defence, that would ultimately vitiate the trial. It has been urged that it is on this account that the applicants have moved this Court, against the aforesaid substantial and material infirmity in the charge, causing them prejudice at the earliest point of time, soon after framing of charge, and, before the trial has commenced.
6. The learned A.G.A. has opposed the motion to admit this application to hearing and has submitted that the date, time and place of occurrence is mentioned in charge no.1, that has been framed in relation to the offence punishable under Section 147 IPC, and, that the subsequent reference to the date, time and place of occurrence in the succeeding charges in seriatim, including charges nos.5 and 6 refer to the same date, time and place of occurrence as mentioned in the charge no.1, framed vide order dated 22.05.2018. Learned A.G.A., therefore, submits that there is no violation of the mandate of Section 212 Cr.P.C. let alone any prejudice being caused to the applicants. He has relied upon a decision of a Division Bench of this Court in Prithvi Nath Mishra Vs. State of Uttar Pradesh1, wherein it has been held relying on the provisions of Section 464(1) Cr.P.C. that unless an omission in framing a charge does not occasion failure of justice, it does not cause prejudice to the accused, and, does not vitiate the outcome of the proceedings.
7. To the above submission in a limited rejoinder, Sri Dharmendra Singhal, learned counsel for the applicants has submitted that objection to the charge in Prithvi Nath Mishra (supra) relates to the stage of an appeal from conviction before this Court, where prejudice, earliest in point of time, was not complained of, whereas in the instant case the applicants have approached this Court promptly at the earliest point of time, soon after framing of charge and before the trial has got underway. He submits, therefore, that the authority in Prithvi Nath Mishra (supra) would have no application in the present case.
8. This Court has given an anxious consideration to the rival contentions addressed on behalf of the applicants and the State.
9. A reading of both the charges nos.5 and 6 framed vide order dated 22.05.2018 shows that the words to describe the date, time and place of occurrence are ";g fd mijksDr frfFk ,oa le; ds iwoZ ogn xzke otgkW] Fkkuk&ckWlMhg jksM] ftyk cfy;k -------------". Even if the submissions of the learned A.G.A. Sri M.P. Singh Gaur were to be accepted, all that he says is that the particulars of the date, place and time of occurrence in charges nos.5 and 6 are to be understood as per reference to the first charge, that clearly mentions the date of occurrence as 08.08.2017, time of occurrence as 7.30 (not mentioning whether it bears reference to morning or the evening hours) and the place as Kali Mandir, Gram Vajahan, Police Station Bansdih Road, District Ballia, whereas a reading of charges nos.5 and 6, the part relating to the date, time and place of occurrence shows that the date and time of occurrence are before the date and time above mentioned (bearing reference to those particulars in charge no.1) and the place of occurrence mentioned being within the limits of Village Vajahan, Police Station Bansdih Road, District Ballia.
10. Now, reference to the date in charges nos.5 and 6 is prior to the date mentioned in charge no.1, and, likewise, the time mentioned in charges nos.5 and 6 is prior to the time mentioned in charge no.1 going by the precise terms, the words and the form in which charges nos.5 and 6 have been framed. So far as place of occurrence is concerned, the place mentioned in charges nos.5 and 6 is "within the limits of Village Vajahan, P.S. Bansdih Road, District Ballia". A revenue village is certainly a territorial entity of a few square kilometers at least, a fact of which judicial notice may be taken. The limits of a village are not referable to a particular point or place and can never be understood "as a place" within the meaning of Section 212 Cr.P.C. The word ''place' in Section 212 Cr.P.C. is to be understood in its common parlance by which the accused and all concerned may understand with some definitive location, the site of occurrence, such as a land mark or an address of a residence or public place or any reference that gives a fair idea of location, where the occurrence happened, but reference to limits of a village would not conform to the requirement.
11. Likewise, the mention of the date and time by employment of the words "before the aforesaid date" and "before the aforesaid time" with reference to the first charge would also be a vague description of the particulars of the date and time that would not conform to Section 212 Cr.P.C. In the present case, where it is said before 08.08.2017 and before 7.30, one is left to guess how much before that stipulated date in the first charge and the stipulated time in the first charge, the occurrence as charged is alleged to have happened.
12. In the opinion of this Court, this kind of a vague description of date, time and place of occurrence is far from what the mandate of Section 212 Cr.P.C. requires. It is, in fact, woefully vague.
13. There is a consistent chain of authorities mostly inspired by the provisions of Section 464 (1) and 215 Cr.P.C., both of which discount the vitiating effects of an error, omission or irregularity in framing a charge amongst others, unless by such error, omission or irregularity a failure of justice has in fact been occasioned.
14. In Chittaranjan Das Vs. State of West Bengal2, it was held by their Lordships of the Supreme Court that even omission to specify date and time of the occurrence is curable to the same effect is a decision of the Calcutta High Court in Mangal Hembram Vs. The State of West Bengal3. The same view has been taken in Shine c/o Chandran Vs. State of Kerala4, where also it has been held that the charge must convey to the accused what the prosecution intends to prove against him, and, what he is required to defend. Though Section 212 Cr.P.C. requires that the charge must set out all particulars including those as to date, time and place, but it is not as if every error, omission or irregularity in the charge would vitiate the trial. The Code of Criminal Procedure is a procedural law, the purpose of which is further and secure the ends of justice, and, not to frustrate the same. To the same effect are the decision in R. Jeeva @ Rajesh Vs. State5 and Raghava Nadar Reghu Vs. State6. It would not be of much profit to refer to further authority on this line of reasoning as the proposition is well settled that an omission, illegality or irregularity in the framing a charge, that would include an incorrect or vague description or an omission of the date, time and place of occurrence would not vitiate the trial unless thereby in fact a failure of justice has been occasioned.
15. Now, it must be said here that most of the authorities, perhaps all of them on the issue that have spurned challenges to ill-framing of a charge in violation of Section 212 Cr.P.C. are cases where the issue was raised in appeal from judgments of conviction or at a late stage of proceedings. It was in that context and that stage that the curative provision of Sections 464(1) & 215 Cr.P.C. have invariably been called in aid. It is not that the authorities on the point have sanctioned a go-by to be given to the mandate of Section 212 Cr.P.C. if objections were raised earliest in point of time; the purpose and effect of Section 464(1) Cr.P.C. or 215 Cr.P.C. is not to render the provisions of Section 212 Cr.P.C. nugatory or otitious. It is only to save proceedings at an advanced stage or concluded from vitiation on account of an irregularity in the charge that has not in fact occasioned a failure of justice.
16. In the present case, the charge has been challenged, as already said, almost as soon as it has been framed, and, again as already said, before the trial has got underway. This Court would certainly be failing in its duty if a charge cast in such vague terms as the charges nos.5 and 6 carried in the impugned order dated 22.05.2018 are, as to the date, time and place of occurrence, at this stage are permitted to survive, and, be the basis of a trial when there is every opportunity without the least prejudice to the prosecution, and, all possible avoidance of prejudice to the accused, in future, as well as securing adherence to the law. The error should be set right at this stage.
17. In the considered opinion of this Court, charges nos.5 and 6, as framed, are required to be quashed and framed afresh by the Trial Court on the next date fixed in accordance with the requirement of Section 212 Cr.P.C. with a good enough description of the date, time and place of occurrence as would give the accused sufficient notice, occasion and opportunity to meet those charges.
18. In the result, this application is allowed in part. The impugned order dated 22.05.2018 (Annexure no.14 to the affidavit filed in support of the application) in so far as it relates to charges nos.5 and 6 are hereby quashed. The Trial Court is directed to reframe the said charges on the next date fixed, or as soon as may be, in accordance with what has been said in this judgment. The order impugned assailing refusal to discharge and that questioning the other charges framed vide order dated 22.05.2018 are upheld.
Order Date :- 31.5.2018 Anoop/ Deepak