Rajasthan High Court - Jaipur
Heera Devi vs State on 8 February, 2012
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.Criminal Revision Petition No.745/2006. Heero Devi. VERSUS State of Rajasthan. 08.02.2012 HON'BLE MR.JUSTICE DALIP SINGH Mr.N.K.Singhal, for the petitioner. Mr.S.K.Mehla, Public Prosecutor.
***** This revision petition has been preferred by the petitioner challenging two orders dated 08.07.2004 (Annexure-3) on the application under Section 319 Cr.P.C. and the order dated 16.06.2006 (Annexure-4) on the application under Section 216 Cr.P.C.
By the order dated 08.07.2004 the application filed under Section 319 Cr.P.C. was allowed by the learned trial court. In the application though it was only mentioned that cognizance against Vinod Kumar son of Badri Prasad may be taken under Section 302 I.P.C. but the learned trial court has passed the order by which it was directed that cognizance for the offence under Section 302 I.P.C. be taken against Vinod Kumar as well as the present petitioner Heero Devi.
Learned counsel for the petitioner submitted that Heero Devi was already facing trial and had been charged for the offence under Section 306 I.P.C. and, therefore, the provisions of Section 319 Cr.P.C. do not apply to Heero Devi, the petitioner.
While there may be substance in the aforesaid submission of the learned counsel for the petitioner as under Section 319 Cr.P.C. it has clearly been stated any person not being the accused and since Heero Devi was already facing trial, the provisions of Section 319 Cr.P.C. would strictly not apply to her case and the proper course in any other case where the accused had not been charged for a different offence and the charge required alteration on the basis of the evidence recorded during the trial was for filing an application for alteration of the charge which may be done by the court at any time before the judgment in accordance with Section 216 Cr.P.C.
Probably realizing the aforesaid position, an application was submitted under Section 216 Cr.P.C. and the said application came to be allowed by the order dated 16.06.2006 by the learned trial court and the learned trial court after consideration of the evidence and material on record altered the charge against the petitioner Heero Devi from one under Section 306 I.P.C. to Section 302 I.P.C.
So far as the objection of the petitioner to the order under challenge dated 16.06.2006 is concerned, it is submitted that the application was not submitted by the Public Prosecutor but by the complainant.
So far as the above contention is concerned, it may be stated that the Section 216 Cr.P.C. does not require the application to be made by the Public Prosecutor only and is not worded restrictively. The provisions of Section 216 Cr.P.C. enables the court to alter or add to any charge at any time before the judgment and this may be done by the court even suo moto. The right of the complainant or the victim to assist the court in the trial has now been duly recognized so much so that the victim has been given the right of filing the appeal as also seeking compensation. Thus, the learned trial court in allowing the application in holding that the application filed by the complainant which was duly supported by the Public Prosecutor was maintainable has not committed any error.
In that view of the matter, I find n o merit in the aforesaid submission of the learned counsel for the petitioner that the application had been filed not by the Public Prosecutor for alteration of the charge but by the complainant and, therefore, it was not maintainable.
The next submission of the learned counsel for the petitioner is that since cognizance had already been taken against the petitioner for the offence under section 306 I.P.C., it was not open for the learned trial court to alter the same and take fresh cognizance by virtue of the order dated 08.07.2004.
I have already held that so far as the order dated 08.07.2004 is concerned, the question of taking cognizance against the petitioner did not arise and the right course was for alteration of the charge in accordance with the provisions of law which has been done in the instant case and there is no infirmity so far as the order dated 16.06.2006 is concerned.
In that view of the matter, the recourse to the provisions contained in Section 216 Cr.P.C. even though subsequently cannot be faulted.
In the facts and circumstances, therefore, I find no merit in the revision petition and the same is accordingly dismissed. The interim order passed by this court on 21.07.2006 stands vacated. The learned trial court is free to proceed with the trial expeditiously as the matter pertains to the year 1997.
The revision petition accordingly stands disposed of.
(DALIP SINGH),J.
All corrections made in judgment/order have been incorporated in the judgment/order being emailed.
Solanki DS, P.A.