Delhi District Court
State vs . Nitin Sharma & Ors. on 8 May, 2017
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SC No. 105/14
State Vs. Nitin Sharma & Ors.
FIR No. 167/12
PS M.S. Park
08.05.2017
(Order on maintainability of application filed on 04.05.2017 u/ss. 216
and 173(8) of Cr.P.C. 1973)
Present : Sh. Shahabuddin, Ld. Addl. P.P. for the State.
Both accused are on bail.
Applicant Ms. Neelam is present, her counsel Dr. K.P.S.
Dalal, Advocate is also present.
In order to decide maintainability of this application, it
needs a little introduction of background.
1.1 (Background) The case was registered u/ss 498A/306/34 IPC and chargesheet was filed against accused Nitin Sharma and Shalini, however, formal charge (for abet to suicide) was framed on 24.07.2013 u/s 306/34 IPC against both accused, after detailed order while discharging them U/s 498A IPC. As on today, all the prosecution witnesses have been examined and prosecution evidence was closed on last date of hearing of 04.05.2017, when the application under consideration was filed.
1.2 But during trial, what happened on 09.09.2013, PW5/complainant Ashok filed an application to initiate criminal Sc No. 105/14 St Vs. Nitin Sharma & Ors.
2proceedings/departmental inquiry against IO but on 12.05.2014 complainant appeared through counsel with request to move an application for amendment of the charge. However, an application under Section 156(3) Cr.P.C was filed on 16.07.2014 and it was disposed off on 16.10.2014 by ld predecessor.
One more application of 11.02.2016 under section 319 Cr.P.C was filed by complainant Ashok (to call Sachin Sharma and Pooja Sharma as accused under Section 302 IPC) and this application was prosecuted by complainant's wife PW1/Smt Neelam, it was dealt and disposed of by detailed order dated 20.02.2017.
1.3 Now complainant's wife Smt. Neelam came with an application dated 4.5.2017 under section 216 Cr.P.C and 173(8) Cr.P.C [ accompanying a photocopy of an identical application with plea that on 18.09.2013, original of this application was filed in court, it was recorded in the proceedings dated 18.09.2013, however it is missing from the judicial file and that is why new application is filed]. This application has been heard on its maintainability besides whether proceedings dated 18..9.2013 pertains to original application U/s 216 Cr P C or it is related with proceedings of other application; it is under consideration in this order.
2.1 First of all, this application under section 216 Cr.P.C and 173(8) Cr.P.C is not sponsored by the State. It was inquired whether any notice on application, stated to be filed on 18.09.2013, was given Sc No. 105/14 St Vs. Nitin Sharma & Ors.
3to the State, it is clarified that there is no such notice ever since issued. It is also explained on behalf of accused persons that they are not aware of any such application U/s 216 Cr P C filed on 18.9.2013.
As per proceedings dated 18.9.2013, it is on record 'that on behalf of complainant, an application for initiating criminal proceedings against the IO was moved', that application is on the file ( it was filed on 9.9.2013 and it was kept for 18.9.2013 for date fixed) but its title does tally with the title of photocopy of application under section 216 Cr.P.C and 173(8) Cr.P.C proposed with the application under consideration; to say this application was not filed earlier nor there is any proceedings in this regard. In fact, the subsequent proceedings on record establish that no application ( proposed as photocopy) was ever since filed by the applicant and there are vexatious and false allegations that it got misplaced from the judicial record.
2.2 Now, learned Counsel requests that application dated 4.5.2017 under section 216 Cr.P.C and 173(8) Cr.P.C may be considered.
3.1 Applicant requests that this is a composite application under section 216 Cr.P.C and 173(8) Cr.P.C, this court has ample powers under law to pass appropriate directions. During arguments, the application is confined to the provisions of section 216 Cr.P.C that Sc No. 105/14 St Vs. Nitin Sharma & Ors.
4the court has ample power to alter or amend the charge in terms of section 216 Cr.P.C. As from the evidence of PW2 allegations of 302 IPC are emerging against two person Sachin Sharma and Pooja, who are relative of present accused, therefore, charge already framed U/s 306 IPC is to be amended U/s 302 IPC against Sachin Sharma and Pooja. This is substance of application.
3.2 During arguments Dr. K.P.S Dalal and Sh. B.S. Narwal, Advocates for applicant reiterated their stand, they referred the provisions section 216 Cr P C and reliance is placed on following judgments:
(i) Dharam Pal & Ors. Vs. State of Haryana & Anr. (2013) 13 SCR 1052 that court of Sessions and court of Magistrate has powers U/s 319 Cr P C as well as U/s 193 of Cr P C to summon the person, against whom there is evidence or substance is appearing from chargesheet.
(ii) Jasvinder Saini & Others Vs. State (Government of NCT of Delhi) (2103) 7 Supreme Court Cases 256 in case of 304B IPC, scope of framing charge U/s 302 IPC was discussed besides powers of court u/s 216 Cr P C that before pronouncement of judgment, the court may add or alter the charge, when court finds that new charge become necessary after commencement of trial.
(iii) Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana And Another, (2016) 6 SCC 105 - that test for change or alter of charge was laid down that charge can be framed on the basis of complaint or FIR or accompanying documents or material brought on record during course of trial and in the event court does not frame a charge despite material on record, it has jurisdiction to add a charge or it has also authority to alter charge.
Sc No. 105/14 St Vs. Nitin Sharma & Ors.
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It is emphasized that the charge is to be altered against
Sachin & Pooja by summoning them through the process of law and on their appearance, the existing charge is to be amended under Section 302 IPC against Sachin and Pooja.
3.3 After conclusion of arguments, Ld. Counsels have been inquired, whether order dated 20.02.2017 on application u/s 319 Cr.P.C has been assailed since this applicant Ms Neelam was also prosecuting it for complainant Ashok, it is clarified that said order has not been assailed either by complainant Ashok or by this applicant Ms Neelam.
4. The contentions, advanced on behalf of applicant, are considered and assessed in the light of material on record and provisions of law; thus following conclusion are drawn:
(i). It stand clarified from reasons in paragraph 2.1 to above that no previous application under section 216 Cr.P.C and 173(8) Cr.P.C was filed. Moreover, as per proceedings dated 12.05.2014, the then counsel for the complainant had requested the court that an application for amendment of charge is to going to be filed, it also establish that no application under section 216 Cr.P.C was filed on 18.09.2013 or prior to 12.5.2014. If the application was filed on 18.9.2013, there was no reason for the complainant to request the court on 12.5.2014 to file application for amendment in charge framed. It is also unfair on the part of applicant to refer the proceedings of 18.9.2013 (in respect of application dated 9.9.13 to Sc No. 105/14 St Vs. Nitin Sharma & Ors.
6initiate criminal proceedings/departmental inquiry against IO) to photocopy application, the original of which was never filed,
(ii) the complainant Sh. Ashok Kumar (PW5) and his wife PW1 Smt. Neelam Sharma are making paradoxical plea at different points of time, as in earlier application under Section 319 Cr.P.C stand was taken to initiate proceedings u/s 302 IPC against Shalini, Sachin and Pooja and now in the present application, it is proposed to alter charge against Pooja and Sachin, who are not facing trial as accused before the court,
(iii) the application under section 216 Cr.P.C could be against accused persons, who are already facing trial. It is not within the purview and scope of section 216 Cr P C to alteration of charge against persons who are not before the court or to summon the persons,
(iv) to summon additional persons as accused or joinder of accused is governed by section 319 Cr.P.C, that has already been dealt in detailed in order dated 20.02.2017. However, that order has not been assailed by the applicant or her husband/complainant,
(v) the application cannot be invoked and it is not maintainable in this State case under FIR no.167/12 to alter the charge in respect of Sachin and Pooja, who are not facing trial before the court. Moreover, this application is also sponsored by the State.
Sc No. 105/14 St Vs. Nitin Sharma & Ors.
7Accordingly, for the conclusions drawn, the application is dismissed. It stands disposed of. In order to deprecate of imputation of false allegations of missing of record from judicial file, the applicant is burden with costs of Rs. 5,000/, to be deposited DLSA, Shahdara District, Delhi, within 7 days.
5. Since prosecution evidence has already been closed. Thus, list this case for statement of accused on 09.5.2017.
(Inder Jeet Singh)
Additional Sessions Judge04 (Shahdara)
Karkardooma, Delhi/08.05.2017
Sc No. 105/14 St Vs. Nitin Sharma & Ors.