Himachal Pradesh High Court
Ashwani Kumar Alias Anku vs State Of H.P on 5 September, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Revision No. 335 of 2019
.
Date of Decision: September 5, 2019
Ashwani Kumar alias Anku ...Petitioner.
Versus
State of H.P. ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1Yes
For the Petitioner: Mr. Surinder Saklani, Advocate.
For the Respondent: Mr.Desh Raj Thakur, Additional Advocate
General, with Mr.Narender Singh Thakur,
Deputy Advocate General.
Vivek Singh Thakur, J (Oral)
This petition has been preferred against the amendment of charge by the learned Special Judge, Kangra at Dharamshala, vide order dated 08.07.2019, in Case S.C. No.10- K/VII/15, titled as State vs. Ashwani Kumar @ Anku, in case FIR No. 134 of 2014, dated 12.12.2014, registered under Sections 363 and 366-A of the Indian Penal Code (in short 'IPC') read with Sections 12 and 18 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), whereby charge under Section 363 IPC and Section 8 of POCSO 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 2 Act has been put to the petitioner-accused instead of charge under Section 363 of IPC and Section 12 of the POCSO Act.
2. Brief controversy in the present case is that in .
criminal trial under Section 363 IPC and Section 12 of POCSO Act pending against petitioner before learned Special Judge, at the stage of arguments, learned Public Prosecutor had filed an application under Section 216 of the Code of Criminal Procedure (in short 'Cr.P.C.') for amendment of charge from Section 11 to Section 8 of the POCSO Act of 2012, by referring statements of PW.2-victim and witness PW.3 Yukesh Kumar. Notice of the said application was given to the petitioner, who had opposed the application by filing a detailed reply, referring deposition of the prosecution witnesses examined during course of trial.
3. It is contended by the petitioner that impugned order has been passed on the basis of application filed by learned Public Prosecutor, which was not maintainable and also that even if the substance referred in the application is taken into consideration, no case for alteration of the charge is made out as learned Public Prosecutor had picked up selective portion of the deposition of prosecution witnesses in support of his prayer made for amending the charge against petitioner and he has referred deposition of witnesses made in examination-in-chief only, whereas, in case, statements of those witnesses, made in cross-examination, are considered, no case is made out for alteration of charge. It is further stated that Court can alter ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 3 charge on its own, but the parties have no vested right seeking alteration or addition or modification of the charge.
4. Learned counsel for petitioner has relied upon .
pronouncement of the Apex Court in P. Kartikalakshmi vs. Sri Ganesh and another, (2017) 3 SCC 347 , wherein it has been held that power vested in the Court under Section 216 Cr.P.C., is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right and it may be, that if there was an omission in framing of charge and if it comes to the knowledge of the Court, trying the offence, power is always vested in the Court, as provided under Section 216 Cr.P.C., to either alter or to add the charge and that such power is available with the Court at any time before judgment is pronounced. Further that no party, neither de facto complainant nor accused or prosecution, for that matter, has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 Cr.P.C. and if such a course, to be adopted by parties, is allowed, then it will be well-nigh impossible for criminal Court to conclude its proceedings and concept of speedy trial will get jeopardized.
It is further held that an application by any of the party is not maintainable before trial Court and therefore, it was not incumbent upon the trial Court to pass an order under Section 216 Cr.P.C.
5. Learned Additional Advocate General has contested this petition on the ground that Court was having the power to ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 4 alter the charge, by exercising powers under Section 216 Cr.P.C., at any stage before pronouncement of judgment and even if it is considered that application filed by learned Public Prosecutor was .
not maintainable, then also, mere filing of the application will not render the order passed by trial Court illegal as the Court is vested with power to alter the charge under Section 216 Cr.P.C.
and he has submitted that by way of alteration of charge petitioner is not going to be suffered any prejudice in any manner, keeping in view the procedure prescribed under Sections 216 and 217 Cr.P.C., which empowers the Court either to direct new trial or adjourn trial for such period as may be necessary and recall or re-summon and examine the witnesses with reference to such alteration or addition and also to call any further witness whom the Court may think to be material.
6. The Apex Court in Anant Prakash Sinha alias Anant Sinha vs. State of Haryana and another, (2016) 6 SCC 105 , after considering its previous pronouncements, has reiterated that Court can change or alter charge, if there is defect or something is left out and the test for it is that it must be founded on the material available on record, and it can be on the basis of the complaint or the FIR or accompanying documents or material brought on record during the course of trial, and it can also be done at any time before pronouncement of the judgment. It is further observed that if Court has not framed charge despite material on record, it has the jurisdiction and authority to add a charge or to alter the charge and the charge so framed by the ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 5 Magistrate should be in accordance with material placed before him or evidence brought on record subsequently and further that by exercising powers under Section 216 Cr.P.C., charges already .
framed can be altered even if evidence has not been let in.
7. Undoubtedly, as held by the Apex Court, it is obligatory on the part of the Court to ensure that no prejudice is caused to accused during trial and he is allowed to have a fair trial.
8. To safeguard the interest of not only accused but also of prosecution, complete mechanism has been provided under Sections 216 and 217 Cr.P.C., after alteration or addition of charge wherein under Section 216(4) it is provided that if, in the opinion of Court, alteration or addition to a charge is such that proceedings immediately with the trial, is likely to prejudice the accused or the Prosecutor, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
9. Section 217 Cr.P.C., in case of alteration or addition of charge by the Court after the commencement of the trial, mandates to allow the Prosecutor and the accused 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 by using word 'shall allow', it is mandated by the legislation to allow the request of ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 6 accused or prosecution to recall or re-summon, and examine such witness except for reasons provided in the section itself.
Further not only this, in Clause (b) of Section 127 Cr.P.C. the .
Court has also been granted discretion to call any further witness, who is considered to be material by the Court after alteration or addition of charge.
10. No doubt, as explained by the Apex Court in P. Kartikalakshmi's case, power under Section 216 Cr.P.C., to alter or add to any charge by the Court, at any time before judgment is pronounced, does not create any vested right in favour of the prosecution, complainant or accused to seek any addition or alteration of charge as the said power is exclusively confined with the Court and Court can suo motu alter or add any charge on the basis of material before it, if it comes to the knowledge of the Court that a necessity has arisen for alteration or addition of charge and Section 216 Cr.P.C. is enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. However, in Anant Prakash Sinha's case, it is also observed that defect in framing of charge can be removed by the Court on its own, but in such a situation, there is no fault on the part of the Court in entertaining an application which, in a way, can be considered an application bringing to the notice of the Court about the defect in framing of the charge. It is clear from conjunctive reading of the pronouncements of the Apex Court that though parties do not have any vested right for alteration or addition of charge, but at ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 7 the same time, the application filed by either party can be entertained by the Court as an instrument bringing defect in the charge to its notice. Therefore, learned Special Judge has not .
committed any illegality or irregularity by entertaining application filed by learned Public Prosecutor.
11. Originally, petitioner was charged by learned Special Judge under Section 363 IPC and Section 12 of the POCSO Act.
Section 12 of the POCSO Act provides punishment for sexual harassment, defined under Section 11, with imprisonment of either description for a term which may extend to three years with fine. Whereas, Section 8 of POCSO Act provides for punishment for sexual assault, defined under Section 7, with imprisonment of either description for a term which shall not be less than three years, but which may extend to five years with fine. For the punishment provided under Section 8 of POCSO Act, it is graver offence than the offence punishable under Section 12 of POCSO Act. Therefore, an accused charged under Section 12 of POCSO Act only cannot be punished for commission of offence under Section 8 of POCSO Act. Therefore, when an application was filed before learned Special Judge, on the basis of material on record stating that a case not of sexual harassment, but of sexual assault is made out, it was necessary for learned Special Judge to consider the material on record and to alter or add the charge, but definitely subject to his own satisfaction on the basis of the FIR, accompanying documents and material brought on record during the course of trial before him and not on mere ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 8 asking of the applicant. The alteration or addition is not to be swayed by the application of either party, but for the material on record, which came or is brought to the notice of the Court.
.
12. In the present case, in the application filed by learned Public Prosecutor, deposition of PW.2 and PW.3 in their examination-in-chief has been referred for amendment of the charge. However, learned Special Judge has not altered the charge on the basis of submissions of the applicant referring portion of the statements quoted by learned Public Prosecutor, but he has amended the charge by referring the material placed before him alongwith challan as he has clearly referred in the impugned order that after going through the charge-sheet, it had appeared to the Court that there was specific allegations against the accused that he had tried to remove prosecutrix from out lawful custody and taken her about 400 meters away from her house towards the Railway Station and therefore, physical contact of the accused with prosecutrix is shown in the case, which will come within the definition of sexual assault under Section 7 of POCSO Act and further that it has been stated in the original charge-sheet that taking of the prosecutrix to the fields was sexual assault and not the sexual harassment and, as such, he has found that there are specific allegations in this regard against the accused in the charge-sheet and thereafter considering that offence under Section 7 of POCSO Act punishable under Section 8 is a serious offence in comparison to the commission of offence under Section 11 of POCSO Act ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 9 punishable under Section 12 of POCSO Act, he has ordered amendment of the charge under Section 363 IPC and Section 8 of POCSO Act.
.
13. At the time of framing of charge, Court has to consider prima facie evidence available on record about commission of offence for which accused is to be charged and not to evaluate the merits of evidence with regard to its sufficiency to convict the accused. Appreciation of evidence on merit is to be done by the Court on conclusion of trial and framing of charge on the basis of allegations in the challan and material accompanying it does not mean that there is sufficient evidence to convict the accused for the said offence as at the time of framing of charge availability of material sufficient for commencing the trial, is to be seen. The same principle will be applicable for altering or addition of charge under Section 216 Cr.P.C.
14. There is difference in 'sufficient material for commencing the trial' and 'evidence sufficient to convict an accused'. Former is to be considered at the stage of framing of charge and latter is to be evaluated on conclusion of trial.
Framing of charge or amendment of charge under a particular Section does not mean that accused is definitely to be convicted for commission of the said offence, but it commences the trial or retrial for charge or amended charge whereafer on the basis of evidence on record accused may be convicted either for charged offence or for lesser offence or may be acquitted.
::: Downloaded on - 29/09/2019 03:11:11 :::HCHP 1015. Therefore, I find no material for interference in impugned order doubting its correctness, legality or propriety.
16. It is informed that in the trial, case has been listed .
tomorrow i.e. 06.09.2019 for examination of witnesses after amendment of the charge, which indicates that trial Court has adopted the mechanism available under Sections 216 and 217 Cr.P.C. for safeguarding the interest of accused to avoid any prejudice to him on account of amendment of charge and during re-examination of the witnesses, petitioner-accused shall also have opportunity to cross-examine those witnesses and in case any witness is not recalled or re-summoned by the Court, he has a right to pray for recalling or re-summon and examine any witness, who may have been examined with reference to the amendment of the charge, and in view of provisions of Section 217 Cr.P.C., Court has no option except to recall or re-summon the said witnesses expect for the reasons provided under Section 217(a) of Cr.P.C.
17. In view above discussion, present petition is dismissed being devoid of merit, so also pending application(s), if any.
(Vivek Singh Thakur), Judge.
September 5, 2019 (Purohit) ::: Downloaded on - 29/09/2019 03:11:11 :::HCHP