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Showing contexts for: s.319 in Sohan Lal And Ors vs State Of Rajasthan on 21 August, 1990Matching Fragments
"2 16. 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 t. he 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 de-
fence 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 ad- journ the trial for such period as may be necessary. (5) xxxxx Add to any charge means the addition of a new charge. An alteration of a charge means changing or variation of an existing charge or making of a different charge. Under this section addition to and alteration of a charge or charges implies one or more existing charge or charges. When the appellants Vijya Bai and Jiya Bai were discharged of all the charges and no charge existed against them, naturally an application under s. 216 Cr. P.C. was not maintainable in their case. In cases of appellants Sohan Lal, Padam Chand and Vishnu against whom the charge under s. 427 I.P.C. was already in existence there of course could arise the ques- tion of addition to or alteration of the charge. The learned Magistrate therefore while disposing of the application under s. 216 Cr. P.C. only had no jurisdiction to frame charges against the appellants Vijya Bai and Jiya Bai. In his order the learned Magistrate did not say that he has proceeding suo motu against Vijya Bai and Jiya Bai though he said that s. 319 Cr. P.C. was also clear in this connection. As regards the other three appellants, namely, Sohan Lal, Padam Chand and Vishnu they were already accused in the case. Section 2 16 Cr. P.C. envisages the accused and the additions to and alterations of charge may be done at any time before Judgment is pronounced. The learned Magistrate on the basis of the evidence on record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet. That was also the prayer in the A.P.P.'s application. However the learned Magistrate invoked his jurisdiction under s. 3 19 Cr. P.C. which says:
There could be no doubt that the appellants 1, 2 and 3 were the accused in the case at the time of passing the impugned order by the Magistrate and as such s. 319 Cr. P.C. would not cover them. Could appellants 4 and 5 be brought under that section.? Were they accused in the case? Precise- ly when a person can be called the accused?
Generally speaking, to accuse means to allege whether the person is really guilty of the crime or not. Accusation according to Black's Law Dictionary means a formal charge against a person, to the effect that he is guilty of a punishable offence laid before a Court or Magistrate having jurisdic- tion to inquire into the alleged crime. In this sense accu- sation may be said to be equivalent of information at common law which is mere allegation of prosecuting officer by whom it is preferred.
Thus this provision empowers, the Courts to direct further inquiry into any complaint which has been dismissed under s. 203 or sub-section (4) of s. 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made.
The question therefore is whether the necessity of making a further inquiry as envisaged in s. 398 could be obviated or circumvented by taking resort to s. 319. As has already been held by this Court, there is need for caution in resorting to s. 3 19. Once a person was an accused in the case he would be out of reach of this section. The word "discharge" in s. 398 means discharge of an offence relating to the charge within the meaning of ss. 227,239,245 and 249. Refusing to proceed further after issue of process is dis- charge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. The cases of appellants 4 and 5 would be one of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them. A personmay be accused of several offences and he may be discharged of some of- fences and proceeded against for trial in respect of other offences. This was the position regarding appellants 1, 2 & 3, who were partially discharged.
The above views have to yield to what is laid down by this Court in the decisions above referred to. The provi- sions of s. 319 had to be read in consonance with the provi- sions of s. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of s. 3 19. Whether he can be dealt with under any other provi- sions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainant's desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P. 's application under s. 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under s. 2 16. Appellants 4 & 5 could be dealt with neither under s. 2 16 nor under s. 3 19. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. The appeals are allowed to that extent.