Madhya Pradesh High Court
R.K.Mittal vs The State Of Madhya Pradesh on 2 July, 2019
Equivalent citations: AIRONLINE 2019 MP 1771
M.Cr.C. No. 15323/2019
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE S.A.DHARMADHIKARI
M.Cr.C. No. 15323/2019
R.K.Mittal
Vs.
State of M.P.
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Shri R.K.Sharma,Senior Advocate with Shri M.K.Choudhary,
Advocate for the petitioner.
Shri Sanjeev Mishra, Government Advocate for the
respondent-State.
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ORDER
02/7/2019 In this petition, under section 482 of the Cr.P.C., petitioner has assailed the order dated 15/10/2018 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 17254/2013, whereby the trial Court has allowed the application filed by the prosecution under section 216 of the Cr.P.C. seeking addition of charge under section 304- A of the IPC. The corresponding order dated 12/2/2019 passed by VIII Additional Sessions Judge, Gwalior in Criminal Revision No.413/2018 affirming the order of trial Court, is also under challenge in this petition.
2. Brief facts leading to filing of this case are that on 14/11/13 complainant Makhan Prajapati filed a written complaint before Police Station before Police Station Inderganj, District Gwalior, alleging therein that the petitioner with an intent to dismantle his own house M.Cr.C. No. 15323/2019 (2) engaged the brother of complainant namely Devki Prajapati. While demolishing the house, the Chhaja (projection) of the building fell down on Devki Prajapati, whereby he sustained injuries on his leg and was taken to hospital for treatment. On the basis of the aforesaid complaint, FIR was registered on 16/12/13. After completion of the investigation, charge-sheet was filed on 26/12/13 for the offences punishable under section 288 and 338 of the IPC. Injured Devki Prajapati was discharged from hospital. However, he died on 5/1/14. Thereafter, police filed supplementary charge-sheet enhancing section 304-A of the IPC.
3. The trial Court framed charges under sections 288 and 338 of the IPC on 16/10/2015. After framing of charges, three witnesses were examined. Assistant District Prosecution Officer filed an application under section 216 of the Cr.P.C. on 23/7/18 praying for addition of charge under section 304-A of the IPC. The learned trial Court vide order dated 15/10/18 allowed the said application under section 216 of the Cr.P.C. The said order has been affirmed by the learned Revisional Court.
4. Shri Sharma, learned Senior Counsel appearing for the petitioner contended that no offence under section 304-A of the IPC is made out against the petitioner. He further submitted that the trial Court, as well as, the Revisional Court have erred in entertaining the application filed by the prosecution under section 216 of the Cr.P.C., inasmuch as the said provision can be invoked only suo motu by the trial Court and not at the instance of any party, neither de facto complainant, nor accused, nor prosecution has any vested right to seek any addition or alteration M.Cr.C. No. 15323/2019 (3) of charge since the same is not provided under section 216 of the Cr.P.C. For this, reliance has been placed on decision of the Apex Court in the case of P.Kartikalakshmi Vs. Sri Ganesh and another ((2017)3 SCC 347). Accordingly, it is prayed that the impugned order may be set aside as the application itself is not maintainable.
5. On the other hand, learned Public Prosecutor has supported the impugned order and prayed that no interference is warranted. It is further contended that supplementary charge-sheet was filed in which offence under section 304-A of the IPC was enhanced. However, the trial Court failed to take note of such development and ultimately when the charges came to be framed against the petitioner, they were confined to sections 288 and 338 of the IPC. Therefore, the prosecution thought it proper to bring it to the notice of the Court, hence application under section 216, Cr.P.C. was moved. Section 216 provides that the trial Court can alter or amend the charge before passing the final judgment. It is further submitted that the objection raised by learned Senior Counsel is quite technical in nature and the prosecution was fully justified in seeking addition of said charge, moreso when the requisite power is available with the trial Court under section 216 of the Cr.P.C.
6. Heard, learned counsel for the parties.
7. Before adverting to the merits of the rival contentions, it would be worthwhile to advert to section 216, Cr.P.C., which reads thus:-
"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.M.Cr.C. No. 15323/2019 (4)
(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.
8. Thus, a bare perusal of the above provision goes to show that the trial Court can add or alter any charge at any time before the judgment is pronounced. Further, the Apex Court in the case of P. Kartikalakshmi (Supra) has held as under :-
"6. Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent
1. Section 216 Cr.P.C. empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court 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. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 Cr.P.C. to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered ,it will be open for the parties to work out their remedies in accordance with law.
7. We were taken through Section 221 and 222 Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under section 216 Cr.P.C. If such a course to be adopted by the parties is allowed, then it will be well-nigh M.Cr.C. No. 15323/2019 (5) impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised.
8. In such circumstances, when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 Cr.P.C.. Therefore, there was no question of the said order being revisable under Section 397 Cr.P.C. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 Cr.P.C. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the court below"
(Emphasis supplied)
9. While addressing upon the point in issue, it is also pertinent to refer to decision of the Apex Court in the case of Kantilal Chandulal Mehta Vs. State of Maharashtra (AIR 1970 SC 359), wherein the Apex Court has held as under:-
"In our view the Criminal Procedure Code gives ample power to the courts to alter or amend a charge whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him."
10. A juxtaposed perusal of the above said two decisions, clearly goes to show that no party has got a vested right to file an application and the Court need not entertain any such application filed by the parties, in order to afford a speedy justice to the parties. The Court itself can apply its mind to the facts and circumstances of the case and if necessary, add or frame an additional charge by its own under section 216 of Cr.P.C. But, the above said decisions of the Apex Court itself clear the doubt that in the event Court does not apply its mind for the purpose of framing of additional charge, but, if it is brought to the M.Cr.C. No. 15323/2019 (6) notice of the Court by any of the parties to the proceedings that an additional charge has to be framed, then also the Court can take that information to pass appropriate order. Therefore, it goes without saying that the provision of 216, Cr.P.C. has given power to the Courts either to apply its own mind to the facts and circumstances available on record or it can also entertain the submissions made by the parties or if the fact that additional charge has to be framed is brought to the notice of the Court, such bringing of the factual aspects by any of the parties can be entertained by the Court. Therefore, the decision has to be understood in such a manner that in any case, the Court shall not entertain the applications, as a matter of right by the parties. However, the parties to the proceedings can make submissions and the Cr.P.C. empowers the Courts to entertain the submissions made for bringing it to the notice of the Court that additional charge requires to be framed. In the aforesaid decision, the Apex Court has also made it clear that without bringing it to the notice of the accused, without causing prejudice to him, no addition or alteration of charge shall be made by the Courts. Therefore, if the factual aspects of the case for the purpose of framing additional charge are brought to the notice of the Court either on the basis of evidence or by way of submission to the Court, fullest opportunity should be given to the accused for the purpose of defending himself as to why the additional charge should not be framed against him. After providing such opportunity, the Court is empowered to pass appropriate order under Section 216 Cr.P.C. Ultimately, both the judgments render a guideline that an opportunity should be given to the parties to the proceedings to bring it to the M.Cr.C. No. 15323/2019 (7) knowledge of the Court as and when required that an additional charge requires to be framed in such a case. In such an eventuality, as a matter of principle of natural justice, an opportunity should be given to the accused to defend himself as to why such charge should not be framed.
11. Therefore, this Court is of the considered opinion that the learned Court below has entertained the application in this particular case, which can very well be treated as a factual aspect brought to the notice of the Court by the prosecution and the learned Court below has applied the principles of natural justice and provided fullest opportunity to the accused and after hearing, has taken the decision to frame charge under section 304-A of the IPC. In the case in hand, after the death of the injured, a supplementary charge-sheet was filed by the prosecution indicating enhancement of section 304-A of the IPC. However, the same escaped the notice of the Court and the Court below in the impugned order has categorically mentioned that due to inadvertence, such charge remained to be framed. Therefore, it cannot be said that the Court below has only acted on the application made by the prosecution, but, in fact, the order impugned has been passed after independent application of mind to the facts of the case by the trial Court in accordance with principles of natural justice.
12. Accordingly, no illegality or perversity is found in the orders impugned passed by the Courts below, so as to warrant any interference. The petition fails and is, accordingly, dismissed (S.A.Dharmadhikari) Judge (and) ANAND SHRIVASTAVA 2019.07.05 10:23:51 +05'30'