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2012 Supreme(Pat) 1598
IN THE HIGH COURT OF PATNA
BIRENDRA PRASAD VERMA, J.
The State Of Bihar, Through, District Magistrate, Siwan – Petitioner/s
Versus
Md. Shahabuddin, S/o Sheikh Hasibullah, resident of Village Pratap Pur, P.S. Hussainganj, District Siwan, at Present convicted prisoner in Siwan Jail & Ors – Respondent
Criminal Revision No.1030 of 2012
Decided On : 18-12-2012
For the Petitioner/s: Mr. S.Dayal For the Opp. Party No.1 :Mr. Yogesh Chandra Verma, Sr. Advocate Ms.Fauzia Shakil, Advocate For Opp. Party Nos. 2 to4:Mr.Shoeb Alam, Advocate Mr. Humaya A. Khan, Advocate
Headnote:Code of Criminal Procedure, 1973-Section 216-The trial court rejecting the prayer for addition of charges against the accused-opp.parties on the ground of delay-On the ground of delay itself the trial court could not rejected the prayer for addition of changes-the observation in the impugned order that prayer for addition of charges shall be considered at the time of final pronouncement of the judgment is beyond the scope of Section 216 Cr. P.C.-if once judgment is pronounced, then there is no question of amendment/addition of charges-after pronouncement of judgment, the trial court becomes functuous officio and cannot pass any order either for alteration or addition of charge-Once a prayer for amendment/addition of charge is allowed, then the court is required to follow the procedures prescribed under Section 216 as also 217 Cr.P.C. and only thereafter, the trial can be concluded-the learned trial court should have considered the prayer on merit-impugned order rejecting the prayer on the ground of delay cannot be sustained. (Para 13)
Code of Criminal Procedure, 1973-Section 397(2) and 216-Maintainability of revision application against the order refusing the addition of charges-the order refusing to exercise the powers by the trial court under Section 216 Cr.P.C. for addition of charge against the accused cannot be termed to be interlocutory in nature-as it substantially affects the right of the parties and against-such order revision application under Section 397(2) is not barred. (Para 17)
Code of Criminal Procedure, 1973-Section 216 read with 397-Addition of charge by the Hon'ble High Court while exercising revisional jurisdiction-While exercising revisional jurisdiction, the High Court should normally refrain from reappraising or re-appreciating the evidence/materials available on the record for coming to a different conclusion than that of the trial court-Sufficiency or otherwise of the materials for addition of charges against the accused persons is required to be necessarily decided first by the trial court and not by the revisional court-impugned order refusing the addition of charges set aside-matter remitted back to the trial court for fresh consideration. (Paras 20 & 22)
AIR 1970 SC 359, AIR 1977 SC 2185, AIR 1978 SC 47, (2004)5 SCC 347 = AIR 2004 SC 2078, 2007(4) PLJR 83, AIR 1928 Bombay 475 (2), AIR 1954 SC 266, (1977)4 SCC 137, (1980)Suppl. SCC 92 = AIR 1980 SC 962, 1996 Cr. L.J. 65 (Allahabad), 1999 Cr. L.J. 196 (Bombay), 2001 (1) JCC (Delhi) 265, (2004)1 SCC 525-Referred to.
Whether a petition filed under Section 216 of the Code of Criminal procedure, 1973 ( for short “Cr.P.C.”) seeking addition or alteration of charge against the accused can be rejected summarily merely on the ground of delay, without considering the prayer on merit by examining and scrutinizing the materials available on the record, is the central issue requiring determination by this Court in the present proceeding.
2. Material facts relevant for deciding the present proceeding are not in dispute. One Kalawati Devi lodged a criminal case on 16.8.2004 with allegations that her two sons, namely, Girish Kumar alias Niku and Satish Kumar alias Sonu have been assaulted by the accused persons and both of them have been abducted in order to murder them. It was also alleged that shops situate near the bus stand were put on fire. On the basis of the aforesaid Fardbeyan, Siwan Mofassil P.S.Case No. 131 of 2004 dated 16.8.2004 under Sections 341,323,380,435 and 364/34 of the Indian Penal Code was instituted by the police and investigation was taken up. Indisputably, on close of investigation, charge sheet was submitted against the accused opposite party nos.1 to 4 for offences under Sections 341,323,380,436,364 and 120-B of the Indian penal Code. After cognizance being taken, the case was committed to the court of Sessions for trial of the accused persons, giving rise to Sessions Trial No. 158 of 2010.
3. Suffice is to state that charges were framed against the accused opposite parties on 4.6.2010. So far accused-opposite party nos.1 to 4 are concerned, they have been charged under Sections 364-A and 120-B of the Indian Penal Code. However, Opposite party nos. 2 to 4 have further been charged for offences under Sections 341,323,364, 364-A, 436 and 380 of the Indian Penal Code. Admittedly, recording of evidence of P.Ws. commenced on 1.7.2010 and altogether ten prosecution witnesses were examined till 26.8.2011. After close of the prosecution evidence, and complying with the mandatory requirements under Cr.P.C., arguments commenced for disposal of the aforesaid Sessions Trial No. 158 of 2010. While the arguments were still continuing, on 9.8.2012 a petition under Section 216 Cr.P.C. was filed on behalf of the prosecution with a prayer for addition of charges under Sections 302, 201 read with Section 120-B of the Indian Penal Code against the accused-opposite parties. It is the case of the prosecution that in view of evidence of P.Ws., particularly on the basis of evidence of P.Ws.1,4, 5 and 6, there are materials showing commission of crime of murder of both the victims by the accused persons, as a result of which amendment of charge is required, and, to be precise, there are materials for addition of charges under Sections 302,201 read with Section 120-B of the Indian Penal Code against the accused-opposite parties. It is the specific case of the prosecution that during the course of trial materials have surfaced that both the abducted persons were killed by the accused persons in conspiracy to each other and their dead bodies have been made traceless, therefore, they are required to be tried for the said charges also. The aforesaid petition dated 9.8.2012 filed on behalf of the prosecution under Section 216 Cr.P.C. for addition of charges has finally been rejected by the learned Additional Sessions Judge-I-cum-Special Judge, Siwan, by his impugned order dated 17.8.2012 passed in Sessions Trial No. 158 of 2010.
4. The State of Bihar through the District Magistrate, Siwan, being aggrieved by the aforesaid order dated 17.8.2012 passed by the learned trial court, has preferred the present revision application under Section 397 and 401 Cr.P.C., questioning the correctness, validity and propriety of the impugned order.
5. It would be relevant to mention here that opposite party nos. 1 to 4 have suo motu appeared through their respective counsels and have resisted the prayer made on behalf of the State of Bihar in the present procee
