Rajasthan High Court - Jaipur
Tola Ram And Etc. vs State Of Rajasthan on 6 January, 1997
Equivalent citations: 1997CRILJ2156, 1997(1)WLN17
ORDER Amaresh Ku. Singh, J.
1. Heard learned counsel for the petitioners and the Public Prosecutor for the State and perused, the record.
2. All the three petitions under Section 482, Cr. P. C. are directed against the order dated 23-5-1995 passed by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur in Criminal Case No. 71/1993: State v. Munna Ram and Ors. Therefore, all the three petitions should be disposed of by one common order.
3. By the impugned order dated 23-5-1995 the learned Additional Chief Judicial Magistrate (Railways), Jodhpur accepted the application dated 23-5-1995 submitted by the learned Assistant Public Prosecutor and directed that all the four accused persons should be apprised of the accusation under Sections 223 and 225A(b), I.P.C. and the case should be retried. It is against this order that these petitions under Section 482, Cr. P. C. have been filed by the accused petitioners.
4. The facts of the case may be briefly summarised as below :
Two persons Khudia and Fateh Mohd. were confined in Central Jail, Jodhpur on 8-8-1992. They were to be produced in a Court at Jaisalmer on 9-8-1992. Tola Ram, Deva Ram, Munna Ram and Bheeka Ram are police constables who were posted in Police Line, Jodhpur on 9-8-1992. They were deputed to take the above named persons Khudia and Fateh Mohd. In custody to the Court at Jaisalmer and bring them back from the Court and get them readmitted in the Central Jail, Jodhpur. Petitioner Tola Ram was Incharge of the Police Party which was entrusted with the above job. Khudia was undergoing sentence in Central Jail, Jodhpur under Section 14 of the Foreigners Act and in one other case he was required to appear in the Court at Jaisalmer on 11-8-1992. The petitioners started with Khudia and Fateh Mohd. from Jaisalmer. One of the prisoners escaped from the custody of the petitioners while he was being brought to Jodhpur in the railway train. On 12-8-1992 at 6.20 a.m. Tola Ram submitted a report in writing before the Station House Officer of the Police Station, Osian. In that report he stated that near the railway station Lohawat prisoner Khudia escaped by removing the hand cuffs from his wrist. The Police registered a case under Section 224, I.P.C. and sent the first information report to the Police Station G.R.P., Jodhpur. The Officer Incharge of the Police Station, G.R.P., Jodhpur registered a criminal case on the basis of the first information report' and commenced the investigation: After investigation a report under Section 173, Cr. P. C. was submitted in the Court of learned Additional Chief Judicial: Magistrate (Railways), Jodhpur. In that report it was stated that Khudia who escaped from the custody could not be arrested and that offence under Section 225, I.P.C. was proved against Khudia and offence under Section 225, I.P.C. was proved against Tola Ram, Deva Ram, Munna Ram and Bheeka Ram.
5. On the basis of the report submitted by the police under Section 173, Cr. P. C. the learned Additional Chief Judicial Magistrate (Railways), Jodhpur registered a case and commenced the trial. The accusation were read over to the accused vide order-sheet dated 8-6-1993. The order-sheet shows that the accusations which were read over and explained to the accused persons were in respect of offence punishable under Section 225B, I.P.C. What was the accusation which was read over to the petitioners has not; been elaborated in the order-sheet dated 8-6-1993. Since the accused did not plead guilty the trial was commenced. During the trial as many as 9 prosecution witnesses were examined. The accused persons were also examined under Section 313, Cr. P. C. and 3 defence witnesses were also examined after examination of the accused under Section 313, Cr. P. C.
6. When the final arguments being heard the prosecution submitted an application under Section 216, Cr. P. C. praying that charge under Section 225A, I.P.C. should also be framed against the accused persons. After hearing the parties the learned Additional Chief Judicial Magistrate came to the conclusion that section under which the act of the accused was punishable was wrongly mentioned in the report submitted by the police under Section 173, Cr. P. C. and that prima facie the case under Sections 223 and 225, I.P.C. was made out. He, therefore, directed that accusation in respect of offences under Sections 223 and 225(b), I.P.C. should be read over to the accused persons and the accused should be retried.
7. Learned counsel for the petitioners has submitted that the order passed by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur is not warranted by law and in the facts and circumstances of the case it was not justified. Regarding, later part of the order in which a direction for retrial has been given, the learned counsel for the petitioners has submitted that it was not within the powers of the learned Additional Chief Judicial Magistrate to direct the retrial when almost the entire trial had been completed inasmuch as the prosecution evidence had been recorded, the accused persons had been examined and defence evidence had also been recorded. It is also submitted by the learned counsel for the petitioners that amendment of the accusation was not permissible under Section 216, Cr. P. C. because Section 216, Cr. P. C. applies to those cases in which the formal charge is to be framed and this section has no application to the summons trial in which a formal charge is not necessary. It is also submitted by the learned counsel for the petitioners that if the order passed by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur is allowed to stand, the prosecution would be getting a fresh opportunity to adduce evidence to fill up the lacuna and the accused petitioners will have to face the trial for several years because the prosecution witnesses are not likely to appear.
8. The learned Public Prosecutor has supported the order passed by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur.
9. I have carefully considered the rival contentions and perused the order of the learned Additional Chief Judicial Magistrate.
10. In this case three questions arise for determination.
1. Whether Section 216, Cr. P. C. applies to summons trials.
2. Whether the learned Additional Chief Judicial Magistrate was competent in law to direct retrial.
3. Whether the order passed by the learned Additional Chief Judicial Magistrate in this case is wholly or partly illegal and unjustified and if so what relief should be granted to the petitioners.
11. Section 216, Cr. P. C. empowers the Court to alter or add any charge at any lime before the judgment is pronounced. Learned counsel for the petitioners has submitted that Section 216, Cr. P. C. has no application to summons trial cases because in those cases a formal charge is not necessary. In my opinion, the argument does not carry weight. The very purpose of holding a trial is to enable the person accused of any offence to defend himself against the accusation levelled against him. This right to defend is now given the status of fundamental right under clause (2) of Article 22 of the Constitution of India. In order the accused person may defend himself it is necessary that he should be apprised of the charge or accusation levelled against him. It is also necessary that the prosecution should ordinarily produce the whole of the evidence during the trial so that the accused person may exercise his right to be defended by cross-examining the witnesses and by raising such objections as may be available to him regarding the relevance or admissibility of evidence on which the prosecution proposes to rely. After the production of the prosecution evidence all the circumstances on which the prosecution proposes to rely for bringing home the guilt to the accused have to be brought to the notice of the accused person under Section 313, Cr. P. C. read with Section 281, Cr. P. C. so that the accused person may get an opportunity to explain the circumstances appearing in evidence against him. After the examination of the accused under Section 313, Cr. P. C. the accused has a right to lead evidence in defence and the accused has a right to make such oral and written submissions as he may deem fit in support of his defence. The whole object of trial is to enable the accused person to exercise his right to defend against the accusation or charge. This is why no criminal trial can take place in the absence of the accused person, unless the accused person has been exempted from appearance and he is represented by a legal practitioner of his choice. If the prosecution fails to produce any evidence during trial then such evidence is not to be taken into consideration by the Court because the accused had no right to make his submissions in respect of such evidence. It is the accused person's right to be defended which necessitation the production of entire prosecution evidence on which the prosecution proposes to rely during the trial. It is also note-worthy that during the trial conducted under the Criminal Procedure Code, 1973 the accused person cannot be compelled to appear as a witness or to produce any document which incriminates him. His right to silence during the whole trial is zealously guarded by law and if he prefers to remain silent no one can compel him to speak but if he prefers to speak at any stage of the trial he must speak the truth on account of the provisions contained in Section 179, I.P.C. In these trials the accused is not tried in that manner in which the persons accused of offence used to be tried by the Romans by subjecting them to ordeals. The trials under the Criminal Procedure Code are also distinguishable from the trial conducted by the Courts of inquisition or by the Courts of Star Chambers which functioned for some years in England. Thus, viewed the subject-matter of trial is accusation which is levelled against a accused person and the whole object of trial is to afford sufficient opportunity to the accused person to defend himself against the charge of the accusation made against him.
12. The Criminal Procedure Code, 1973 however provides four modes of trials. These are known as Sessions trials, warrant trials, summons trials and summary trials. It is evident from the provisions of the Criminal Procedure Code that the Legislature has classified the trials into two categories (a) trials before a Court of Sessions (b) trials before the Courts of Magistrates. Whereas the trials before the Court of Sessions are known as Sessions trials and have not been sub-divided into classes, the trials before the Magistrates have been further sub-divided into two classes (i) warrant cases, and (ii) summons cases. The distinction between warrant cases and summons case is that if the offence is punishable with more than two years the trial is to be conducted cording to the procedure prescribed for warrant cases and if the offence is punishable with less than two years imprisonment the trial may be conducted according to the procedure laid down for summons cases. While the warrant cases are not further subdivided, the summons cases appear to be further divided into two classes (a) summons cases in which the record of the case is to be prepared as required by law and (b) summary trials in which the preparation of the record is substantially dispensed with, for instance, under Section 281(6), Cr. P. C. which provides that nothing contained in Section 281, Cr. P. C. applies to examination of an accused person in summary trial which means that in summary trial the statement of the accused need not be recorded in the manner prescribed by sub-sections (1) to (5) of Section 281, Cr. P. C. It is also obvious by the comparison of the provisions relating to four kinds of trials prescribed by the Criminal Procedure Code. 1973 that the trials before the Court of Sessions are likely to result in imposition of sentences including capital punishment, imprisonment for life and any other lesser sentence provided by law. Therefore, a comprehensive record is required to be prepared. The charges are, therefore, required to be framed against the accused persons in order to apprise them of the charge levelled against them. The evidence is to be recorded verbatim. Before the amendment it was provided that in Sessions trials ordinarily the evidence should be recorded in question-answer form so that the questions and answers both may be placed on record for reasons which will be pointed out at some other place. The examination of the accused persons under Section 313, Cr. P. C. was also required to be comprehensive and in question-answer form as required by sub-sections (1) to (5) of Section 281, Cr. P. C. In warrant cases a change was permitted. It was in the matter of recording of evidence and it was permitted that in place of recording the evidence of the witnesses in question-answer form the Court may record the evidence in the narrative. The reason for insisting on recording the evidence of the witnesses in question answer form was to keep a complete record of the context in which a certain word or sentence was uttered by the witness. The question put to the witness is the context in which the witness gives an oral or other kind of response. This response or word or words uttered by the witness have to be understood in the context, constituted by the question put to the witness. Ordinarily the persons who are interrogated by putting questions to them do not speak out the whole of the sentence with their own mouth. They utter only a word or two in the context of the question put to them and in these ca , the narrative of the statement of the witness is to be prepared by the Court if the question as well as the response both are sufficient to convey an intelligible statement to the Court. Recording the statement in the narrative, therefore, necessarily involves at many places an interpretation of the response made by the witness to the question put to him during the examination in chief, cross-examination and the re-examination. In serious cases tried before the Court of Sessions the accused persons may be sentenced to capital punishment, imprisonment for life or any other sentence provided by law. The Legislature therefore thought it fit to direct that a complete record of the examination of the witness should be kept and for that purpose permitted the Court to record the evidence of the witnesses in question-answer form and in warrant cases permitted the Magistrate to record the evidence in narrative because the sentence which the Magistrate can impose is of a lighter nature in comparison to the sentence which a Court of Sessions may impose. In summons cases the legislature intended to effect further saving of the Court's time by permitting that a formal charge need not be framed and it would meet the ends of justice if accusations made against an accused are read over and explained to him in the matter of recording of evidence of witnesses. The Legislature permitted the Magistrate to prepare a memorandum containing the substance of evidence given by the witnesses. In summary trials the same procedure is to be adopted by the Magistrate as is prescribed for summons cases but to effect further economy of time and energy the Legislature dispensed with elaborated recording of the statement of the accused persons by providing in sub-section (6) of Section 281, Cr. P. C. that the provisions of Section 281, Cr. P. C. would not apply to summary trials and deliberately avoided any mention of summary trials in Chapter XXIII of the Criminal Procedure Code, 1973 which suggests that no separate record of evidence produced during the summary trial is required to be prepared by the Court conducting summary trial. Section 263, Cr. P. C. points out as to what kind of record is to be prepared in a summary trial and there is no mention of evidence given by the witness in Section 263, Cr. P. C. In Section 264, Cr. P. C. which deals with the judgment to be delivered in a summary trial it is provided that the Magistrate shall record the substance of the evidence and a judgment containing a brief statements of the reasons for the findings. It would, thus, appear that while prescribing 4 kinds of trials, the Legislature has taken care to ensure that the right of the accused person to defend himself against the charge or accusation made against him is protected but having regard the quantum of sentence which may be imposed on an accused person in case he is found guilty, the Legislature has tried to effect economy in time and energy by providing that in warrant trials the evidence may be recorded in narrative and in summons trial the framing of formal charge may be substituted by reading over and explaining the accusation and, recording of substance of evidence in place of recording the evidence in question-answer form or in the narrative and in summary trials further economy has been effected as pointed out above. Viewed in above light the object of framing of a formal charge against an accused person is to apprise him of the accusation against him most exactly so that he may exercise his right to defend in effective manner and may not be prejudiced on account of a defective charge or incomplete charge and the same object is to be sought to be served by apprising the accused person of the accusation made against him. It is not as if framing of a formal charge in a summons trial is prohibited. Section 251, Cr. P. C. does not prohibit the framing of formal charge against an accused person. It merely permits the Court to dispense with the framing of a formal charge and apprise the accused person the particulars of the offence of which he is accused. The provisions of Section 251, Cr. P. C. therefore, do not prohibit the Magistrate from framing a formal charge or charges against the accused person.
13. Viewed in this light the provisions of Section 216, Cr. P.C. are applicable to summons cases in the same manner in which they are applicable to sessions cases and warrant cases. The provisions of Section 216, Cr. P.C. are general and their object is to protect the rights of the accused persons to be informed about the offence of which he is accused, so that he may exercise his right to defend. A Magistrate may if he thinks fit, in appropriate cases frame a formal charge in summons trial cases, if mere reading over of accusation to the accused is not likely to serve the object of informing the accused about the particulars of the offence or offences of which he is accused. I, therefore, hold that in this case the application of the learned Assistant Public Prosecutor was maintainable Under Section 216, Cr. P.C. and the learned Additional Chief Judicial Magistrate had the legal authority to exercise his powers Under Section 216, Cr. P.C. if that was necessary.
14. The second question to be decided in this case is whether the learned Additional Chief Judicial Magistrate (Railways), Jodhpur was competent to direct a re-trial in the case. The learned Public Prosecutor has not drawn my attention to any of the provisions which may be said to authorise the learned Magistrate to direct a re-trial in a case pending before him. It may be pointed out that the effect of a re-trial is that the evidence has to be produced afresh and whatever evidence was recorded earlier would not be substantive evidence in the retrial. In other words if retrial is directed the evidence which was recorded during the formar trial would not be used as substantive evidence in the second trial. It is possible that the witnesses who appeared and testified during the first trial may not be available when the second trial is conducted and the prosecution may become handicapped in producing them during the second trial. Viewed in this light, the direction that the retrial should be conducted can be given only if it is authorised by law and justified in the facts and circumstances of the case. In cases where only an amendment of the charge or charges or the amendment of the accusation which is to be read over and explained to the accused person in summons trial or summary trials is necessary, the provisions of Section 217, Cr. P.C. would apply and after the alteration or addition in the charge, or the accusation the prosecutor and the accused shall be allowed to recall or re-summon and examine any witness who may have been examined with reference to such alteration or addition unless the Court for reasons recorded in writing considers that the prayer for recall of the witness has been made for the purpose of vexation or delay or for defeating the ends of justice and the court may also call any further witness whom the Court may think to be material. Section 217, Cr. P.C. does not contemplate (a) a fresh trial or a second trial after alteration or addition to the charge levelled against the accused person. The learned Additional Chief Judicial Magistrate (Railways), Jodhpur was, therefore, not justified in directing a retrial. All that was open to him was to act in accordance with the provisions of Section 217, Cr. P.C. The direction given by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur so far as it directs retrial deserves to be quashed.
15. The third question to be decided in this case is whether the exercise of the powers given by Section 216, Cr. P.C. was necessary in this case. I have gone through the report submitted by the police under Section 173, Cr. P.C. and the order-sheet dated 8-6-1993. None of them indicates the offences of which the accused persons were made accused. In the instant case, the facts as disclosed by the prosecution are to the effect that the accused persons were bringing two prisoners from Jaisalmer to Jodhpur on 11-8-1992. One of the prisoners namely Khudia escaped from the railway train. The petitioners came to know about the escape in the morning when they woke up. From the facts alleged by the prosecution an offence Under Section 225A, IPC was prima facie made out because the petitioners were either negligent in keeping the prisoners in custody or they intentionally allowed one of the prisoners to escape. In the charge-sheet submitted Under Section 173, Cr. P.C. the police wrongly mentioned Section 225, IPC. It is, therefore, obvious that the provisions of Section 251, Cr. P.C. were not complied with when the particulars of the offence was told to the accused persons. The learned Additional Chief Judicial Magistrate (Railways), Jodhpur was, therefore, justified in directing the amendment of the charge/particulars of offence in exercise of the powers conferred by Section 216, Cr. P.C. I, therefore, do not find any impropriety in directing an amendment of the charge/particulars of the offence to be told to the accused persons.
16. For the reasons mentioned above, the petitions arc partly allowed. The direction given by the learned Additional Chief Judicial Magistrate (Railways), Jodhpur that the accused persons be informed about the particulars of the offence punishable Under Section 223, and in the alternative Section 225A (b), IPC is hereby upheld. But the direction to conduct a retrial is hereby quashed. The learned Additional Chief Judicial Magistrate (Railways), Jodhpur shall after informing the accused persons about the particulars of the offences punishable Under Sections 223 and 225A(b), IPC act in accordance with the provisions of Section 217, Cr. P.C. and dispose of the case according to law.
17. A copy of this order be sent to the learned Additional Chief Judicial Magistrate (Railways) Jodhpur alongwith the record within 15 days.