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Rajasthan High Court
Honble AMARESH KUMAR SINGH, J.
Tola Ram - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Misc. Petition No. 284 of 1996 & 2 Other Petitions
Decided On : January 06, 1997
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, not prohibit the Magistrate from framing a formal charge or charges against the accused person. (Para 13)
A Magistrate may if he thinks fit , in appropriate cases frame of a formal charge in summons trial case,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. (Para 14)
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. (Para 15)
(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 vs. Munna Ram & 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 approved of the accusation under Sections 223 and 225 A(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 :
(5). 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 re-admitted 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 224 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.
(6) 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 accusations 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 225 B 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 a 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.
(7) 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 Ch
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