Madhya Pradesh High Court
Brajendra Singh Rawat vs The State Of Madhya Pradesh on 8 December, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2598/2021
(Brajendra Singh Rawat vs State of M.P.)
Gwalior, Dated : 08.12.2021
Shri Pratip Visoriya, learned counsel for the petitioner.
Shri Abhishek Sharma, learned Panel Lawyer for the State.
Present criminal revision under Section 397/401 of CrPC
arising out of order dated 03/9/2021 passed by the First Additional
Sessions Judge, District Datia in Sessions Trial No.54/2021, whereby
charges under Sections 333 and 353 of IPC and Section 25 (1-B)(a) of
Arms Act have been framed against the petitioner.
It is alleged that the First Information Report was registered
against the present petitioner for offences under the Arms Act. After
completion of investigation, the charge-sheet was filed against the
petitioner. During the course of recording of statements of witnesses,
the JMFC arrived at the conclusion that the offences under Sections
333 and 353 of IPC are also made out against the present petitioner,
therefore, the aforesaid offences were enhanced and the matter was
committed to the Court of Sessions as the same are to be tried by the
Court of Sessions. After the matter was taken up by the Sessions
Court for consideration, then fresh charges were framed by the
Sessions Court and the summons were issued for production of
witnesses.
It is argued by learned counsel for the petitioner that once the
statements of the witnesses have already been recorded by the JMFC,
then there was no requirement for the Sessions Court to direct for
recalling the entire witnesses. Only the witnesses are required to be
examined to the extent of additional charges which are to be framed
by the Sessions Court. He has placed reliance upon the provisions of
Section 217 of CrPC to substantiate the arguments. It is further
submitted that from the perusal of the aforesaid provisions, it is
apparently clear that the subsequent charges which have been framed
were only required to be considered by the Sessions Court, therefore,
the order impugned is per se illegal.
Per contra, learned counsel appearing for the State has opposed
the revision stating that there is provision for altering the charges
available with the Courts at the time of consideration of witnesses and
conducting the trial. If the Court finds it feasible that the charges are
made out, then the same can always be enhanced. It is further argued
that in terms of provisions of Section 217 of CrPC, the Court is having
right to ask for recalling of all the witnesses as statements are to be
recorded with respect to additional charges framed. He has placed
reliance upon the judgment passed by the Supreme Court in the case
of Dr. Nallapareddy Sridhar Reddy vs. The State of Andhra
Pradesh & Ors., [Criminal Appeal No.1934 of 2019 (Arising out of
SLP (Crl.) No.3884 of 2019].
Heard learned counsel for the rival parties and perused the
available record.
For determination of the question involved, provisions of
Section 216 and 217 of CrPC are required to be seen which read as
under:-
"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."
217. Recall of witnesses when charge altered.--Whenever
a charge is altered or added to by the Court after the
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2598/2021
(Brajendra Singh Rawat vs State of M.P.)
commencement of the trial, the prosecutor and the accused
shall be allowed--
(a) to recall or re-summon, and examine 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 justice;
(b) also to call any further witness whom the Court may
think to be material."
From the perusal of the aforesaid provisions, it is apparently
clear that the trial Court are having right to alter the charges at any
stage of proceedings if it is found that certain provisions are made out.
The Supreme Court in the case of Dr. Nallapareddy Sridhar Reddy
(supra) has held as under:-
"22 In the present case, the High Court while directing the
framing the additional charges has evaluated the material
and evidence brought on record after investigation and
held:
"LW1 is the father of the de facto complainant, who
states that his son in law i.e., the first accused promised
that he would look after his daughter at United
Kingdom (UK) and promised to provide Doctor job at
UK and claimed Rs.5 lakhs for the said purpose and
received the same and he took his daughter to the UK.
He states that his son-in-law made him believe and
received Rs.5 lakhs in the presence of elders. He states
that he could not mention about the cheating done by
his son-inlaw, when he was examined earlier. LW13,
who is an independent witness, also supports the
version of LW1 and states that Rs.5 lakhs were
received by A1 with a promise that he would secure
doctor job to the complainant's daughter. He states that
A1 cheated LW1, stating that he would provide job and
received Rs.5 lakhs. LW14, also is an independent
witness and he supported the version of LW13. He
further states that A1 left his wife and child in India and
went away after receiving Rs.5 lakhs.
Hence, from the above facts, stated by LWs. 13 and 14,
prima facie, the version of LW1 that he gave Rs.5 lakhs
to A1 on a promise that he would provide a job to his
daughter and that A1 did not provide any job and
cheated him, receives support from LWs. 13 and 14.
When the amount is entrusted to A1, with a promise
to provide a job and when he fails to provide the job
and does not return the amount, it can be made out
that A1 did not have any intention to provide job to
his wife and that he utilised the amount for a
purpose other than the purpose for which he
collected the amount from LW1, which would
suffice to attract the offences under Sections 406 and
420 IPC. Whether there is truth in the improved
version of LW.1 and what have been the reasons for
his lapse in not stating the same in his earlier
statement, can be adjudicated at the time of trial. 14
It is also evidence from the record that the additional
charge sheet filed by the investigating officer, missed
the attention of the lower court due to which the
additional charges could not be framed."
(Emphasis supplied)
23 The test adopted by the High Court is correct and in
accordance with decisions of this Court. In the counter
affidavit filed by the fourth respondent before this Court,
depositions of PW 1 (LW 1), PW 5 (LW 12) and PW 6 (LW 13) and their cross-examination have been annexed. The material on record supports the possibility that in April 2006, the appellant demanded Rs 5,00,000/- from PW 1, who is the complainant, in order to secure a doctor's job for the complainant's daughter in the United Kingdom. According to PW 1, he borrowed the amount from PW 5 (brother-in-law of PW 1) and paid it to the appellant in the presence of PW 5 and PW 6 (friend of PW 1). Without pronouncing on the probative value of such evidence, there exists sufficient material on record that shows a connection or link with the ingredients of the offences under Sections 5 HIGH COURT OF MADHYA PRADESH Cr.R. No. 2598/2021 (Brajendra Singh Rawat vs State of M.P.) 406 and 420 of the IPC, and the charges sought to be added.
24 The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the 15 reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."
Learned trial Court at the time of recording the statement has arrived at the conclusion that the alteration of charges are required as certain other charges are prima facie made out against the accused persons, therefore, additional charges were framed and they were required to be considered before the Court of Sessions, therefore, the matter was committed to the Sessions Court. The Sessions Court has rightly passed the impugned order and fixed the matter for framing of charges, therefore, no illegality appears to be committed by learned Sessions Court in view of the judgment passed by the Supreme Court in the case of Dr. Nallapareddy Sridhar Reddy (supra).
In such circumstance, present revision sans merit and is accordingly dismissed.
ALOK KUMAR 2021.12.13 17:03:45 (Vishal Mishra) +05'30' Judge AKS