Andhra Pradesh High Court - Amravati
Paturu Subba Reddy vs State Of A.P., 11 Others on 14 December, 2022
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.3058 OF 2016
ORDER:
This Criminal Revision Case came to be filed, under Sections 397 and 401 of the Code of Criminal Procedure, 1972 (for short, „the Cr.P.C‟) by the petitioner herein, who was the de-facto complainant (PW.1) in C.C. No.79 of 2009, challenging the order, dated 13.10.2006, in Crl.M.P. No.225 of 2016 in C.C. No.79 of 2009, on the file of the Court of Judicial Magistrate of First Class, Sidhout (for short, „the trial Court‟), whereunder the learned Magistrate dismissed the Crl.M.P. No.225 of 2016, which was filed under Sections 216 and 323 Cr.P.C. with a prayer to add Section 307 of the Indian Penal Code, 1860 (for short, „the IPC‟) and commit the case to the Court of Sessions.
2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The facts, which are borne out by the record and which can be extracted here, for the purpose of this Criminal Revision Case can be summarized as follows:
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AVRB,J Crl.R.C. No.3058/2016 Originally, the de-facto complainant gave a statement which was marked before the trial Court under Ex.P-1 to the concerned SHO, which came to be registered as FIR under Sections 147, 148 and 326 R/w.149 IPC. The Vontimitta Police, Kadapa District after investigation filed charge sheet under Sections 147, 148 and 326 R/w.149 IPC. The allegations in Ex.P-1 were that accused attacked the de-facto complainant with an intention to kill him.
The Police registered the FIR and laid charge sheet, ultimately, on the above provisions of law. After that, the learned Magistrate took cognizance and after completing the formalities framed charges under Sections 147, 148 and 326 R/w.149 IPC. During course of trial, the de-facto complainant was examined as PW.1 and during the evidence in chief-examination he stated that on 23.04.2009 at 10:30 PM, while he was present at Sri Rama temple in Bandarupalli, all the accused came there armed with iron rods, sickles, axes and sticks with an intention to kill him. A-2 tried to beat him with iron rod on his head but he put his left hand to resist that blow as such he received injuries to his left hand and little finger. A-1, A-3 to A-11 beat him on his overall body and caused injuries. Against that background, the learned Assistant Public Prosecutor filed a Petition in Crl.M.P. No.225 of 2016 in C.C. No.79 of 2009, for which the accused i.e., A-1 to A-3 filed 3 AVRB,J Crl.R.C. No.3058/2016 counter and on hearing both sides the learned Magistrate dismissed the Petition. Aggrieved by the same, the de-facto complainant came up with the present Criminal Revision Case.
4. Now the point that arises for consideration is as to whether the order in Crl.M.P. No.225 of 2016 in C.C. No.79 of 2009, dated 13.10.2016, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said order?
5. Sri M. Pitchaiah, learned counsel for the petitioner, would contend that the Police did not register the FIR under Section 307 IPC though in Ex.P-1 it was alleged that the accused attacked the de-facto complainant with an intention to kill him and even after completion of investigation, Police did not include Section 307 IPC by laying the charge sheet and even the learned Magistrate, at the time of framing of charges, did not look into the allegation under Section 307 IPC as such PW.1 was compelled to depose the facts which were happened really and thereupon the learned Assistant Public Prosecutor filed the application under Sections 216 and 323 Cr.P.C, which came to be dismissed by the learned Magistrate erroneously. Learned counsel would further contend that the Magistrate had absolute power either under Section 216 Cr.P.C. or 4 AVRB,J Crl.R.C. No.3058/2016 under Section 323 Cr.P.C. to include Section 307 IPC and commit the case to the Court of Session but the learned Magistrate failed to do so as such the impugned order is liable to be set-aside. In support of his contention, he would rely upon a decision of the Hon‟ble Apex Court in Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh {Criminal Appeal No.1934 of 2019, arising out of SLP (Criminal) No.3884 of 2019, dated 21.01.2020}.
6. Learned counsel appearing for the respondent Nos.2 to 10, would contend that the de-facto complainant as PW.1 deliberately improved the case during chief-examination as if A-2 targeted his head and he had resisted the blow and such things were not there in Ex.P-1 or in his statement under 161 Cr.P.C. and there were no injuries on the body of PW.1 which can be ascribed to the sharp edged weapons and the learned Magistrate thoroughly discussed the entire circumstances and rightly dismissed the Petition, as such there are no grounds to interfere with such an order.
7. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, submits that the order of the learned Magistrate can be revised.
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8. There is no dispute that the Police did not include Section 307 IPC either at the time of registration of FIR or at the time of filing of charge sheet. There is no dispute that the learned Magistrate framed charges under Sections 147, 148 and 326 R/w.149 IPC because cognizance was also taken under the above provisions of law. The learned Magistrate was not at all competent to frame a charge under Section 307 IPC at the time of framing of charges. There is no dispute that the cognizance that was made by the learned Magistrate is not questioned by the de-facto complainant. Even the charges that were framed are not challenged before proper forum. It is during the course of trial, basing on the evidence of PW.1, on certain aspects the learned Assistant Public Prosecutor filed the Application.
9. This Court has gone through the decision of the Hon‟ble Apex Court in Dr. Nallapareddy Sridhar Reddy (supra), wherein, originally the charges before the trial Court were under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. A petition came to be filed for alteration of charges into Sections 406 and 420 IPC and the said application was dismissed by the learned Magistrate. Then, a Revision was filed before the Hon‟ble High Court and the Hon‟ble High Court allowed the same. 6
AVRB,J Crl.R.C. No.3058/2016 Against that subject matter, Criminal Appeal No.1934 of 2019 was filed before the Hon‟ble Supreme Court and the said Appeal was dismissed.
10. It is pertinent to make a mention here that the Hon‟ble Apex Court dealt with the scope of Section 216 Cr.P.C., which is held in Para 16 as follows:
"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 12 (2017) 3 SCC 347 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
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11. The above decision arose in a case where the learned Magistrate was competent to alter the charges into Sections 406 and 420 of IPC. Coming to the case on hand, before the Court below, a Petition was filed even under Section 216 Cr.P.C. So, the intention of the learned Assistant Public Prosecutor appears to be to get the alteration of charges also into Section 307 IPC and to get the committal to the Sessions Court. In this regard the facts in Dr. Nallapareddy Sridhar Reddy (supra) are distinguishable from the case on hand as here the learned Judicial Magistrate of First Class, Sidhout was not competent to alter the charge into Section 307 IPC, because Section 307 IPC is exclusively triable by the Court of Session.
12. This Court, in Criminal Revision Case No.1650 of 2008, dated 28.11.2022, while dealing with the powers of the Magistrate to alter the charges into a serious offence, which is to be tried by a Special Court or any other superior Court, held as follows:
"Whenever any Magistrate is inquiring into any offence, for which he is competent to try the offender, after framing necessary charges, an application under Section 216 Cr.P.C. cannot be moved before the particular Court basing on the evidence available on record praying the Court to alter the charges that are already framed into that of a serious offence which is to be tried by a Special Court or 8 AVRB,J Crl.R.C. No.3058/2016 any other superior Court. Regarding the provisions in the Criminal Procedure Code regulating trial before Court of Sessions, Section 228 of Cr.P.C. confers powers even on a Sessions Judge to frame a charge against the accused, though the offence is not exclusively triable by a Court of Sessions and to transfer the case to the Chief Judicial Magistrate or Judicial Magistrate of First Class. As regards the trial before the Magistrates, be that may be under warrant procedure or summons procedure, it does not confer any power on the Magistrate to frame a charge for which he is not competent to try the offender and to commit the case to the Special Court or the Court of Sessions."
13. In the light of the above, this Court is of the considered view that, absolutely, an application under Section 216 Cr.P.C before the Court below is not maintainable. This Court is conscious of the fact that the application was also filed under Section 323 Cr.P.C. Section 323 Cr.P.C runs as follows:
"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed - If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained."9
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14. Before going to deal with Section 323 Cr.P.C., this Court would like to make it clear that dealing with the powers of the Court under Section 216 Cr.P.C., the Hon‟ble Apex Court in Dr. Nallapareddy Sridhar Reddy (supra), held that power vested in the Court under Section 216 Cr.P.C is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing an application as a matter of right. Now, looking into the language employed in Section 323 Cr.P.C and taking a clue from the decision of the Hon‟ble Apex Court in Dr. Nallapareddy Sridhar Reddy (supra), this Court is of the considered view that even the powers under Section 323 Cr.P.C are exclusive to the Court to take a decision as to whether the material available before the Court warrants it to commit the case to the Court of Session. However, soon after examination of PW.1 in chief and cross, the learned Assistant Public Prosecutor filed the Application.
15. There is no dispute that the overt acts spoken by PW.1 during chief-examination that A-2 tried to beat him on his head with iron rod so as to kill him and then he put his left hand to resist that blow and sustained injury to his left hand and little finger is an improvement for the first time. It is quietly evident 10 AVRB,J Crl.R.C. No.3058/2016 from Ex.P-1 and 161 Cr.P.C statement. Even it is pointed out by the learned Magistrate. The original allegation is that A-2 caused injury on the left hand of PW.1. So, it appears that only to improve the case so as to attract the allegations under Section 307 IPC PW.1 deposed that A-2 tried to attack him on his vital part of the body. Such improvement to attract Section 307 IPC appears to have been made. Apart from this, there are no injuries on the body of PW.1, which can be attributed to a sharp edged weapon. The case of the prosecution is that all the accused were armed with dangerous weapons. When it is the allegation of PW.1 that A-1, A- 3 to A-11 beat him on his overall body and caused injuries, there were no injuries on his body, which can be attributed to sharp edged weapons.
16. A perusal of the impugned order goes to show that the learned Magistrate recorded sound reasons and exercised his judicial discretion in view of Section 323 Cr.P.C. to ascertain as to whether the material available on record warrants him to commit the case to the Court of Session. In my considered view, the learned Magistrate rightly dismissed the Crl.M.P. No.225 of 2016 in C.C. No.79 of 2009, which was filed by the learned Assistant Public Prosecutor under Sections 216 and 323 Cr.P.C. 11
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17. Having regard to the above, this Court is of the considered view that virtually it is not at all a fit case to interfere with such a reasoned order passed by the learned Judicial Magistrate of First Class, Sidhout duly looking into the material available on record. Hence, I find no reason to interfere with such an order.
18. In the result, the Criminal Revision Case is dismissed.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date : 14.12.2022 DSH