Krishna Devi v. State of Punjab and others

Judgment

3. Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C. For quashing the order dated 27.02.2007 passed by the Judicial Magistrate Ist Class, Pathankot and the order dated 13.11.2007 passed by the learned Sessions Judge, Gurdaspur vide which the application moved by the victim to add charges under the appropriate section was dismissed. It is stated that though according to the contents of the complaint CRM No. M 6382-M of 2008 2 submitted by the petitioner, the police should have registered the case under Section 376, 366, 506 and 34 IPC but the police in connivance with the private respondents registered the same only under Section 354 to hush up the matter since the said offence is bailable. It is further stated that the challan was presented before the JMIC Pathankot on 19.01.2004. It is pertinent to mention here that the challan was presented only against respondent No. 5 and the name of respondent no. 4 was placed in column No. 2. As such, petitioner had to move an application dated 21/01/2006 under section 319 Cr.P.C. for summoning respondent No. 4 which was allowed. The charges in the case were framed under Section 354 by the Judicial Magistrate Pathankot on 26.02.2004 and an application dated

20.05.2004 was moved for amendment of charges by the petitioner and the same was dismissed by the Judicial Magistrate Ist class Pathankot vide order dated 05.07.2005. The operative part of the said order reads as under:- “From the complaint moved by complainant Krishna Devi, who had moved an application of commission of rape with her daughter Jeevan Jyoti has been moved on 19.03.2003 whereas alleged occurrence had taken place on 16.01.03 and medical reports submitted at this stage don't depict the commission of any rape and Dr. Jagjiwan Lal has been examined as a witness to prove the age of Jeevan Jyoti, prosecutrix and from the initial statement of Krishna Devi and other documents relied upon by the prosecution and evidence recorded, there are no grounds to amend the charge at this stage or to commit the case for the commission of offence under Section 376 of the IPC. In case it appears in evidence of prosecutrix and other evidence to be adduced by the prosecution the same can be CRM No. M 6382-M of 2008 3 appreciated after recording of evidence, whether the case is to be committed u/s 376 of the IPC and so at this stage application is ordered to be dismissed. Now adjourned to

07.09.05 for evidence of prosecution.”

Learned counsel for the petitioner further submitted that though according to the statement dated 21.01.2006 given by the victim before the learned JMIC Pathankot, the offence under Section 376, 366, 506 and 34 IPC are clearly made out and the ld. JMIC Pathankot was legally bound to frame the charges under the above said sections and to commit the case to the ld. Additional Sessions Judge Gurdaspur for its trial but the ld. JMIC Pathankot had not applied his mind legally. Vide order dated 05.07.2005, the request of the petitioner submitted to the Ld. JMIC Pathankot to amend the charges was rejected and now again the charges have been framed under section 354 IPC only vide order dated 27.02.2007. Thereafter, revision petition No. 22 of 29/03/2007 was moved before the ld. Additional Sessions Judge (Ad hoc) cum Fast Track Court Gurdaspur against the order dated

27.02.2007 passed by the JMIC Pathankot but the same was dismissed by the ld. Additional Sessions Judge vide order dated 13.11.2007. Learned counsel for the respondents opposed the same on the ground that the first medical examination was got conducted on 27.03.2003 i.e. after about 3 ½ months from the date of alleged occurrence and the second medical examination was got conducted on 29.04.2003 after a gap of more than a month of the first medical examination. The first medical examination is the correct examination on the basis of which it was evident that offence under section 376 IPC was not made out. The re-examination of the medical Board is a result of manipulation. Secondly, the present CRM No. M 6382-M of 2008 4 petition under Section 482 Cr.P.C. is not maintainable as the same would amount to second revision. The petitioner had already availed of remedy of revision before the Sessions Court. Thus, the present revision under the garb of Section 482 Cr.P.C. was not maintainable. Thirdly, in any case, the trial Court under Section 216 Cr.P.C. can at any time alter or modify the evidence and relied on a judgement of the Apex Court rendered in the case of State of Maharasthra v. Salman Salim Khan and another reported as 2004 (1) CRC (Criminal) 314 as well as in the case of State of J & K v. Abdul Ahad Sheikh reported as 2001(3) RCR (Criminal) 171 to substantiate that the High Court can not alter the charge in exercise of its power under Section 482 Cr.P.C. and it should be left to the trial court to alter or modify in such charge at any appropriate stage based on material produced before it. Section 216 Cr.P.C. Reads as under:- “216 Court may alter charge. (1) Any court may alter or add to any charge at any time before judgement 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 CRM No. M 6382-M of 2008 5 aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” It is evident from the Section reproduced above that it is open to the trial Court to alter the charge at any stage of trial depending upon the material that is brought before it in the form of evidence. Hon'ble the Supreme Court in the case of State of Maharashtra (supra) in paras 12 and 13 held as under:- “12. We are of the opinion that though it is open to a High Court entertaining a petition under section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the apex Court most of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at CRM No. M 6382-M of 2008 6 this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under section 304 Part II, IPC.

13. Therefore, we think it appropriate that the findings in regard to the sufficiency or otherwise of the material to frame a charge punishable under section 304, Part II, IPC of both the courts below should be set aside and it should be left to be decided by the court trying the offence to alter or modify any such charge at an appropriate stage based on material produced by way of evidence.” Thus, by making any observation on the addition or deletion of the charge, this Court by applying its mind would be pre-empting the prosecution. In view of the facts and discussion made above, the present petition is disposed of with a direction to the trial court that it would be open to the concerned court to alter or modify the charge appropriately depending on the material that is brought before it in the form of evidence at a later stage, if so warranted. Disposed of accordingly.

16.03.2010 (Nirmaljit Kaur) Judge