Bombay High Court
Mohammad Javed S/O. Mohammad Salim vs The State Of Maharashtra on 2 January, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
4-revn-325-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
4 CRIMINAL REVISION APPLICATION NO.325 OF 2019
MOHAMMAD JAVED S/O. MOHAMMAD SALIM
VERSUS
THE STATE OF MAHARASHTRA AND ANR
...
Advocate for Applicant : Mr. Naseem R. Shaikh
APP for Respondents-State : Mr. A. A. Jagatkar
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 2nd January, 2020.
ORDER :
. Present criminal revision application has been filed by the original accused challenging the order below Exhibit-73 for the alteration of charge against him. Earlier, the charge that was framed against him was under Section 354 of Indian Penal Code and offences under Section 3(b) read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act"). Thereafter, it appears that after the statement of the accused under Section 313 of the Code of Criminal Procedure ("Cr.P.C." for short) was recorded, an application came
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4-revn-325-2019.odt to be moved on behalf of the prosecution as per the provisions of Section 216(1) of Cr.P.C. for addition of charge for the offence punishable under Section 3(m) of POCSO Act, 2012. In the application, it was mentioned that in view of the evidence led by the prosecution, especially, the evidence of the informant, victim, father of the victim and headmaster of school, it had come on record that the age of the victim is 7 years and this fact was not mentioned in the earlier charge which was framed at Exhibit-13. Therefore, the charge is also required to be framed for Section 5(m) of POCSO Act which prescribes for the offence in an aggravated form which is committed for penetrative sexual assault on the child below 12 years.
2. The accused filed say at Exhibit-74 in which it was stated that the application is not maintainable. It was also stated that the matter has been argued and it is fixed for judgment and at this stage, the charge cannot be altered. Ingredients of Section 5(m) of POCSO Act are not attracted and no case is made out to
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4-revn-325-2019.odt frame the charge. So also, there is absolutely no evidence adduced on behalf of the prosecution to prove the age of the victim.
3. After hearing both sides, the application came to be allowed by the learned Additional Sessions Judge, Jalgaon on 01-11-2019. On the same day, additional charge was framed and the plea/statement of the accused was recorded. Obviously, it was in denial. Now, the original accused has challenged the said order below Exhibit-73 as well as the additional charge framed at Exhibit-75.
4. Heard learned Advocate Mr. Naseem R. Shaikh for the applicant and learned APP Mr. A. A. Jagatkar for respondent No.1-State. It is not necessary to issue notice to respondent No.2 since her rights are protected through the State at this stage.
5. It has been vehemently submitted on behalf of the revision applicant that though the application was filed under Section 216 of Cr.P.C. which prescribes for
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4-revn-325-2019.odt alteration of charge at any stage before the pronouncement of the judgment, yet, the learned Additional Sessions Judge erred in not giving an opportunity to the accused to lead evidence. In fact, the FIR and other documents including the statement of the informant before the Magistrate show a different name of the victim and Exhibit-50 which was the birth certificate of the victim, shows another name. This aspect could have been brought on record and the opportunity was then available to the accused either to cross examine the witnesses or in any other form. But for that purpose, an opportunity to lead evidence ought to have been given by the learned Judge.
6. Learned APP has strongly submitted that after alteration of the charge, at Exhibit-78, the accused had only sought an adjournment. So also on the adjourned date also, he sought adjournment without making it explicitly clear that he wants to lead evidence. Exhibit-50 was already on record when the accused had cross examined informant, victim and even
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4-revn-325-2019.odt the father. Now this revision is filed only to protract the matter.
7. At the outset, it is to be noted that when the charge was framed at Exhibit-13, the name of the victim and her age has been specifically mentioned. There was, in fact, a scope available to the prosecution to get immediately added Section 5(m) of POCSO Act. In a trial before the Court of Sessions, the trial begins under Section 225 of Cr.P.C. and as per Section 226 of Cr.P.C., when the accused appears or is brought before the Court in pursuance of commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. It is to be noted that though the case was under the POCSO Act and the cognizance ought to have been taken by the Special Court before the charge was framed, documents attached to the charge sheet, rather the complete charge sheet copy, would have been made available to the accused.
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4-revn-325-2019.odt Accused had every idea what charge he was required to face. The purpose of framing a charge is to make the accused aware about those allegations which he is required to face. Section 211 of Cr.P.C. prescribes about the contents of the charge and as per Section 212 of Cr.P.C., particulars as to time, place and person are required to be mentioned in the charge. All these factors have been done when the charge was framed at Exhibit-13 in this case. In fact, Section 215 of Cr.P.C. prescribes for effect of errors. It states that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Thus, in this particular case, when it was specifically stated in charge, which was framed at Exhibit-13, that the accused had committed penetrative sexual assault on the prosecutrix aged 7 years, it had, in fact, disclosed the offence under Section 5(m) of POCSO Act
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4-revn-325-2019.odt also. But since more clarification or specification was needed, the application was filed by the prosecution under Section 216(1) of Cr.P.C. It prescribes any Court may alter or add to any charge at any time before judgment is pronounced. The perusal of the roznama would show that the matter was fixed for pronouncement of judgment on 22-10-2019, but before the judgment was pronounced, on that day, application Exhibit-73 was filed. That means, before the judgment was pronounced, the said application under Section 216(1) of Cr.P.C. was filed. Opportunity to put-forth his say, about the alteration to be made, was given to the accused who had given his say at Exhibit-74 and after hearing him, application Exhibit-73 was allowed. No legal fault can be found in the said order. Though the learned Advocate for the applicant tried to submit that as per the charge Exhibit-13, the maximum sentence that could have been imposed was 5 years but by alteration of charge under Section 5(m) of POCSO Act, it prescribes for punishment of 7 years. We may not go much into those details, but as already it is expressed
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4-revn-325-2019.odt that even Exhibit-13 contained the particulars of Section 5(m) of POCSO Act also, it cannot be said that any prejudice is caused to the accused by alteration of the charge.
8. After the order was passed below Exhibit-73, the additional charge was framed and in view of Section 216(2), such alteration or addition was read and explained to the accused. Accused has pleaded not guilty to the said charge. Now, the question was in respect of further step to be taken and as it appears from the roznama that on the same day, learned APP before the learned Additional Sessions Judge gave pursis regarding closure of evidence at Exhibit-77, thereafter, on the same day, the accused gave application at Exhibit-78 regarding adjournment only, it appears that no indication was given in the said application that he wants to lead evidence. Same thing happened on the adjourned date i.e. 08-11-2019. Learned Advocate for the applicant has canvassed for the right of the accused under sub-section (4) of
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4-revn-325-2019.odt Section 216 of Cr.P.C. which prescribes for directing a new trial or adjourn the trial for such period as may be necessary if the alteration or addition would cause prejudice to the accused or the prosecutor. Further he submitted that now the matter is posted for arguments.
9. It is to be noted that Section 216(4) only prescribes that if prejudice is going to be caused to the accused in case of alteration or addition, then the Court may direct a new trial or another mode is to adjourn the trial for such period as may be necessary. As aforesaid, when the particulars explained in Exhibit-13 itself were sufficient and the addition of the charge under Section 5(m) of the POCSO Act has not caused any prejudice to the accused, it appears that in view of the later part of sub-section (4) of Section 216 of Cr.P.C., the learned Additional Sessions Judge had adjourned the matter. We are required to take into consideration the provisions of Section 217 of Cr.P.C. which prescribes for recall of witnesses when charge is altered. It states that whenever a charge is altered
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4-revn-325-2019.odt or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed
(a) to recall or re-summon, and examine with reference 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 the justice; (b) also to call any further witness whom the Court may think to be material. When in the Special case, the charge was altered at Exhibit-75 as aforesaid, opportunity was given to the prosecution only as per Exhibit-77 to lead evidence and then the prosecution has passed the pursis but the roznama or the record does not show that such opportunity was made available to the accused or not in view of Section 217(a) of Cr.P.C. It may not be necessary for an accused to specifically write it down for explaining that he wants to take recourse or exercise his right under Section 217 of Cr.P.C. in specific words.
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4-revn-325-2019.odt However, the record of the Court should show that such opportunity was made available to the accused and then if it is not taken voluntarily by the accused then also the record should reflect the same. In the present case, the accused has not given any application to recall or re-summon and examine any of the witnesses with reference to such alteration or addition of the charge vide Exhibit-75. When this fact was specifically asked to the learned Advocate for the applicant, he submits that it may due to the mistake of the Advocate, who was representing the accused before the trial Court, that the same has not been mentioned in adjournment application Exhibit-78 as well as Exhibit-89. Now when opportunity has to be made available then as the record in this case is not reflecting the same, it is necessary to direct the learned Additional Sessions Judge to make that opportunity available to the accused before the further step is taken. It will not be out of place to mention here that Exhibit-50 was on record though it appears that it was exhibited after the informant, victim and
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4-revn-325-2019.odt her father was examined, but it was before the statement of the accused that was recorded on 19-09-2019. On 14-10-2019, the arguments were also heard but now in view of the alteration in the charge, the accused wants to encash the alleged discrepancy in Exhibit-50 though he had lost or had not taken that opportunity earlier.
10. When on 01-11-2019, opportunity was given only to the prosecution in view of Section 217(a) of Cr.P.C., then the record ought to have reflected that similar opportunity ought to have been made available to the accused also. Therefore, with the said direction, the matter can be disposed of. Hence, the following order :
ORDER I) Criminal Revision Application is hereby partly allowed.
II) The learned Additional Sessions Judge, trying Special (POCSO) Case No.38 of 2016 against the revision petitioner, is hereby directed to
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4-revn-325-2019.odt adhere to the procedure contemplated under Section 217(a) of Cr.P.C. by granting an opportunity to the accused; if he desires and then to proceed with the trial.
III) It is clarified that none of the reliefs claimed in the revision are allowed in this case.
[SMT. VIBHA KANKANWADI, J.] SCM
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