Himachal Pradesh High Court
Surinder Kumar vs State Of H.P. And Anr. on 3 December, 2002
Equivalent citations: 2003CRILJ2900
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as 'the Code') has been preferred by the petitioner against the order dated 10-4-2002 passed by the learned Sessions Judge, Sirmaur at Nahan whereby he has dismissed revision petition preferred by the petitioner and respondent No. 2 against the order dated 1-10-2001 passed by the learned trial Magistrate whereby an offence under Section 409, IPC has been added to the charge framed against them.
2. Brief facts leading to the presentation of this petition are that on submission of a charge-sheet against the petitioner and respondent No. 2 under Sections 409, 420, 467, 468, 471 and 120-B, IPC, the learned trial Magistrate framed charges against them for the commission of offences punishable under Sections 420, 467, 468, 472 read with Section 120-B, IPC. When the trial was at the final stage and the case was fixed for final hearing, the prosecution moved an application under Section 216 of the Code for addition of a charge under Section 409, IPC. The application was contested by the petitioner and respondent No. 2 but was allowed by the learned trial Magistrate vide his order dated 1-10-2001. Being aggrieved, the petitioner and respondent No. 2 preferred Criminal Revision No. 28-Crr/10 of 2001 in the Court of the learned Sessions Judge who dismissed the same by the impugned order. Being aggrieved, the petitioner has preferred the present petition.
3. I have heard the learned counsellor the petitioner and the learned Deputy Advocate General for the respondent/State and have also gone through the records.
4. It was contended by the learned counsel for the petitioner that the addition in the charge at the stage of final arguments is going to adversely affect the petitioner in his defence, therefore, the order making addition to the charge deserves to be set aside.
5. Section 216 of the Code which empowers the Court to alter or add to charge reads as follows :
"216. Court may alter charge.-- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
6. It is clear from a bare reading of the aforesaid provisions that the Court has the power to add to or alter a charge at any time before judgment is pronounced. Such addition or alteration is permissible even at the appellate stage before the pronouncement of judgment in appeal. The section itself takes care of avoiding any prejudice to the accused by providing adequate safeguards in Sub-sections (2), (3), (4) and (5) to prevent resulting of any material prejudice to the accused. It follows that when the facts and circumstances of the case so warrant, the Court is empowered to add to or alter the charge already framed against the accused at any stage before the pronouncement of the judgment.
7. In the case in hand, the material facts constituting commission of an offence punishable under Section 409, I.P.C. had already been set out in the charges earlier framed against the petitioner and respondent No. 2. It has specifically been mentioned in the charges so framed that the amount collected by the petitioner and respondent No. 2 from the consumers against the electricity bills was dishonestly misappropriated by them and was not deposited in the Government accounts. In the face of the allegations as mentioned in the charge-sheet and set out in the charges already framed, non-mentioning of Section 409, I.P.C. as the penal provision was apparently a mistake which could be rectified by the trial Court under the provisions of Section 216 of the Code. After having made the aforesaid additions to the charge the trial Court had already taken steps to resummon the witnesses examined in the case apparently with a view to enable the petitioner and respondent No. 2 to further cross-examine them keeping in view the addition in the charge. It cannot, therefore, be said that the trial Court has failed to take into account the provisions of Sub-sections (2) to (4) of Section 216 of the Code which are intended to put the accused in a position that no prejudice is caused to him in his defence. Thus, there is no reason to interfere with the impugned order.
8. As a result, the petition merits dismissal and is accordingly dismissed.