Gujarat High Court
Ajaybhai Khodidasbhai Chauhan vs State Of Gujarat on 26 February, 2024
NEUTRAL CITATION
R/CR.RA/277/2024 ORDER DATED: 26/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 277 of 2024
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AJAYBHAI KHODIDASBHAI CHAUHAN & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1,3,4
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/02/2024
ORAL ORDER
1. By way of this Revision Application under section 397 and 401 of Cr.P.C., the petitioner has challenged the order dated 08.01.2024 passed by learned Additional Sessions Judge, Savarkundla in Sessions Case No.7 of 2020 (Old Case No.66 of 2014).
2. Learned advocate for the petitioner submits that learned Sessions Judge has committed error in adding charge under section 216 of Cr.P.C. for the offence under section 302 of IPC on the application filed by the learned PP at Exh.44. He would submit that Hon'ble Apex Court in the case of P.Kartikalakshmi v/s. Sri Ganesh [(2017) 3 SCC 347] categorically held that power of the Court under section 216 to alter or add any charge is independently and has to be exercised on its own and not at the Page 1 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined instance of first informant de facto complainant or prosecution and therefore, learned Sessions Judge has committed serious error in adding charge of offence under section 302 of IPC. He also referred to judgment of this Court in the case of Sahdevsinh Natubha Zala v/s. State of Gujarat [Criminal Revision Application No.384 of 2017] to submit that identical view has been taken by the Co-ordinate Bench while allowing the Revision and believed that the Court cannot alter charge at the behest of the prosecution. It is further submitted that adding of charge under section 216 of Cr.P.C. for the offence under section 302 of IPC is materially erred by the learned Trial Court and therefore, present Revision Application be allowed.
3. On the other hand, learned APP would submit that learned Trial Court has independently examined the documents available on record and came to conclusion that because of serious injury sustained by the deceased, he died. He would further submit that application Exh.44 was though moved by the learned PP before the learned Trial Court it was just information brought to the notice of the learned Trial Court about subsequent incident which took place and in that way, learned Sessions Judge has taken cognizance of subsequent incident placed on record and came to conclusion that offence under section 302 of IPC is required to be added. No illegality is committed by the learned Trial Court. It is further submitted that judgment relied by the learned advocate for the petitioner is not helping the petitioner and therefore, present revision application be dismissed.
4. Having heard learned advocates for the parties, it is necessary to refer translated version of para 4 and 5 being Page 2 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined reasons of impugned order in allowing Exh.44 which reads as under :-
"4. Thus, looking to the above mentioned facts and circumstances, it is found that as per the case of the Prosecution, the said incident occurred on 13-04-2014 and in this incident, the accused no. 1 inflicted one sword blow on the head of the witness and the accused no. 2 inflicted two blows using an iron T to the witness on head. Whereas, accused no. 3 to 5 sat on the leg of the witness and instigated to assault the witness and as the accused no. 3 caught hold of the hands of the witness, the accused no. 1 inflicted four blows of pipe on both the shoulders of the witness. Accordingly, a complaint was registered under Section 143, 147, 148, 149, 307, 504, 506(2) of the IPC and Section 135 of the G. P. Act and at the end of the investigation, charge-sheet was filed regarding those offenses. The case was committed to this Court and as the accused no. 3 died, case has been decided as abated qua him. Thereafter, charge was framed vide Exh.28 regarding the above mentioned Sections and further statements of the accused were recorded vide Exh. 29 to 32, wherein the accused persons pleaded not guilty. Therefore, the case was adjourned for evidences of the Prosecution. Complainant Jaysukhbhai Bhanjibhai Rathod has been examined for the Prosecution and thereafter, as the Prosecution has submitted the present application, the aforementioned Medical Witnesses have been examined and affidavit of the Investigating Officer has been produced.
5. If it is discussed on the basis of the above mentioned oral and documentary evidence alongwith the evidences on record regarding the issue as to whether section 302 of the IPC can be added in the present case, it is seen that Medical Officer Dr. Dharmishtha Gordhanbhai Vaghasia, who gave treatment to the deceased, has been examined vide Exh.65. She has stated that the deceased had sustained grievous injury on head and there was severe bleeding. Moreover, OPD Case has been produced vide Exh.66 and treatment certificate has been produced vide Page 3 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined Exh.67. Thereafter, Neuron Surgeon Dr. Hemang Harishchandra Vasavada, who also gave treatment to the deceased, has been examined vide Exh.71. He has stated in his deposition the history given by the deceased as well as the injuries sustained by the deceased, wherein it was mentioned that there was (1) an 8 cm long stitch present on the forehead, (2) there was right frontal and parietal bone fracture and extra dural hemorrhage and (3) there was contusion injury on right side frontal and parietal lobe of brain. It was stated that the injury no. 2 was such that was caused by a hard and blunt substance and it was a grievous injury and the treatment certificate was produced vide Exh.94. Thereafter, Dr. Kalpesh Somchandbhai Kotariya, who conducted postmortem examination of the deceased, has been examined vide Exh. 94. In his deposition on oath, he has stated in detail about the process carried out by him, the internal and external injuries sustained by the deceased as well as regarding the cause of his death. If the said facts are taken into consideration at the present stage, it is stated in Para No. (4) that deceased was 36 years old having strong physic and there was a healed wound at the center of the forehead, which started 3 cm above gebella and extended towards the head on the upper side, wherein stitch marks were seen. Alongwith this, if the internal injury no. (11) sustained by the deceased is seen, it is found that "there was malunited depressed fracture having 7 x 3.6 cm size below the aforesaid scare, which was in both the frontoparietal bones." Thereafter, final opinion and cause of death was mentioned in Para no. (19) on the basis of Histopathological report that death has been caused due to "cardio-respiratory failure due to pathology in brain and lungs." Thereafter, looking to Para No. (27), it is stated therein that depressed fracture, seen in both frontoparietal bones, noted down during the internal examination, can be caused if assaulted by hard and blunt substance.
Thereafter, it is stated in Para No. (28) that "such death can be caused by infection of injuries sustained prior to death." Now, if the cross-examination of this witness is seen, it is stated therein that it is true that no fresh internal or external injury was found during the examination. It is true that final cause of death was mentioned on the basis of Histopathology Report. It is true Page 4 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined that at present I have stated on the basis of experience as to using which weapon, the internal and external injuries may have been caused to the deceased. It is true that, I was not aware at the time of carrying out the postmortem that, the person had sustained injury earlier. It is true that, I was not aware that this person had been previously injured until after giving opinion. I stated based on my experience that such death could be due to previous injury.
Thus, seeing all the above facts and produced evidence simultaneously, the deceased had 8 cm. long stitches above the forehead due to the injury sustained on 13-04-2014 and there were frontal and parietal bones fracture on the right side and extradural type of hemorrhage. There was contusion type injury in the frontal and parietal lobes of the brain on the right side. Now, upon seeing the internal injury from the time of P.M. , the same also had "malunited depressed fracture of size 7 X 3.6 cm below the stitched wound in the middle of forehead, below the scar mentioned above, the same was in both frontal- parietal bones. From the cross-examination by the defense, the fact is clear that no external or internal injury sustained by the deceased was fresh, in those circumstances, the injury was a previous injury and on examining the place of the injury, the internal injury was found at the same place where the stitches were taken and fracture was found earlier. In this manner, seeing the cause of death and as the death occurred due to the pathology in the brain and lumbus, it appears reasonable to believe that it was caused by a previous injury. From the cross-examination by the defense, it is clear that the said witness has stated the cause of death based on his experience and histopathology report. The said witness is an "expert" performing duty at the Forensic Medical Department, Ahmedabad and has no personal interest or connection with the present case or any of the parties, so there is no reason to disbelieve his deposition and based on his experience and pathology report, he has clearly stated that the death of deceased was caused due to the injury sustained earlier. Upon seeing the opinion of the said expert in para no. (24) in regard with the external injury nos.1 and 2 sustained by the deceased, the same Page 5 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined can be caused if any person is continuously bedridden and seeing para no.(27), it is clearly stated that, injury no.6 and 7 may occur due to infection caused by bedridden situation or previous injury and it is also stated that, internal depressed fracture injury can occur from blunt object. The defense has contended that there is no evidence that the deceased was undergoing treatment from 2014 to 2015, but the injury caused by prolonged bed rest points towards the bedridden situation due to previous injury. Deceased was 36 years old and had strong built body, in such circumstances, on the basis of oral and documentary evidence and experience of the medical expert, it appears that, the brain injury sustained by the deceased at the time of the incident was the same as the internal injury observed at the time of P.M. and the death was caused due to previous injury and its infection and that there is a direct and clear connection between the same. The defense has also contended about the delay, but upon seeing the record, the injured person died after the charge sheet was submitted and the fact came to be known during the prosecution's evidence after the charge was framed and thereafter the application was submitted and hence the delay. Therefore, no suspicion can be raised regarding the application due to the delay. Thus, in view of the discussion as per the above details and due to the reasons stated, the present application filed by the appellant deserves to be allowed and therefore below order is passed in the interest of justice."
5. What appears that learned Sessions Judge has taken cognizance of the fact and information produced before it and that after recording deposition of Dr.Dharmista Vagasiya at Exh.65 came to the notice that injury on head which was sustained by the deceased was grievous and several bleeding was there and then deposition of Dr.Hemang Vasavda Exh.71 was also taken into consideration, so also the various injuries and thereafter Dr.Kalpesh Kothariya was examined at Exh.94. All these aspect has been taken into consideration by the learned Page 6 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined Sessions Judge minutely and elaborately and thereafter reached to conclusion that offence under section 302 of ICP is prima facie made out and therefore, learned Sessions Judge has added charge of offence under section 302 of IPC in exercise of powers under section 216 of Cr.P.C.
6. Learned advocate for the petitioner has relied on para 6, 7 and 8 of the judgment of Hon'ble Apex Court in the case of P.Kartikalakshmi (supra), which reads as under :-
"6. Having heard learned counsel for the respective parties, we find force in the submission of learned senior counsel for respondent no.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 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 Sections 221 & 222 of the 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 excl usively 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 Page 7 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined 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 impossible for the Criminal Court to conclude its proceedings and the concept of speedy trial will get jeopardized.
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 no.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."
7. The judgment in the case of P.Kartikalakshmi (supra) relied by learned advocate for the petitioner would not be helpful to the petitioner. In the present case learned Sessions Judge has discussed available evidence on record against accused minutely and elaborately and though application was moved by learned PP at Exh.44, has taken into consideration on its own to add charge in exercise of power under section 216 of Cr.P.C.. It cannot be said that learned Sessions Judge has exercised and passed order below Exh.44 at the behest of learned PP, it was learned PP who has brought to the notice of the learned Sessions Judge about various evidence on record and learned Sessions Judge took its own.
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8. In this facts, judgment relied upon by the learned advocate for the petitioner would not be helpful. The accused will have right to recall the witness when charge is altered in view of section 217 of Cr.P.C.
9. In the case of Anant Prakash Sinha v/s. State of Haryana [(2016) 6 SCC 105], the Hon'ble Apex Court in para 21 and 22 has held as under :-
"21. Presently to the second aspect. Submission of Mr. Sharan is that the learned Magistrate could not have entertained the application preferred by the informant, for such an application is incompetent because it has to be filed by the public prosecutor. In this regard, he has laid stress on the decision in Shiv Kumar v. Hukam Chand and another[21]. In the said case, the grievance of the appellant was that counsel engaged by him was not allowed by the High Court to conduct the prosecution in spite of obtaining a consent from the concerned Public Prosecutor. The trial court had passed an order to the extent that the advocate engaged by the informant shall conduct the case under the supervision, guidance and control of the Public Prosecutor. He had further directed that the Public Prosecutor shall retain with himself the control over the proceedings. The said order was challenged before the High Court and the learned single Judge allowing the revision had directed that the lawyer appointed by the complainant or private person shall act under the directions from the Public Prosecutor and may with the permission of the court submit written arguments after evidence is closed and the Public Prosecutor in-charge of the case shall conduct the prosecution. This Court referred to Sections 301, 302(2), 225 CrPC and various other provisions and came to hold as follows:-
"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other Page 9 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."
22. Being of this view, this Court upheld the order passed by the High Court. The said decision is, in our opinion, is distinguishable on facts. The instant case does not pertain Page 10 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024 NEUTRAL CITATION R/CR.RA/277/2024 ORDER DATED: 26/02/2024 undefined to trial or any area by which a private lawyer takes control of the proceedings. As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo motu. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view. We also do not perceive any error in the revisional order by which it has set aside the charge framed against the mother-in-law. Accordingly, we affirm the order of the High Court in expressing its disinclination to interfere with the order passed in revision. We may clarify that the entire scrutiny is only for the purpose of framing of charge and nothing else. The learned Magistrate will proceed with the trial and decide the matter as per the evidence brought on record and shall not be influenced by any observations made as the same have to be restricted for the purpose of testing the legal defensibility of the impugned order."
10. For the foregoing reasons, the present Revision Application is bereft of merits and learned Sessions Judge has not committed any error speaks to the error of law in reaching to conclusion. The present Revision Application is dismissed.
11. Needless to say that above findings are tentative and limited for the purpose of deciding present Revision Application. Learned Sessions Judge will not be influenced by such findings.
(J. C. DOSHI,J) SATISH Page 11 of 11 Downloaded on : Wed Feb 28 20:40:00 IST 2024