Issuance of notice to show cause against framing of charge u/ss 375 and 376.

The Court made the following Order.-

This revision petition has been registered as per the order, dated 12th April, 1977 passed by Sri D.B. Lal, J. in Criminal Appeal No. 255 of 1976. The respondent who was the appellant in Cr.A. No. 255 of 1976 has been served.

2. Cr.A. No. 255 of 1976 arose out of convictions and sentences passed on the respondent for offences under sections 363 and 366 of the Indian Penal Code by the Sessions Judge, Tumkur, in Sessions Case No. 24 of 1975. While disposing of the said Criminal Appeal, Sri D.B. Lal, J., found that offences under sections 375 and 376 of the Indian Penal Code also had been made out and a charge ought to have been framed for those offences. He dismissed the Criminal Appeal by the judgment dated 12th April, 1977 and after so doing, passed the order that a criminal revision petition be registered and a notice to the respondent¡ to show cause why a charge should not be framed against the respondent under sections 375 and 376, Indian Penal Code be issued.

3. Now, the question that arises for consideration is whether after disposing of the Criminal Appeal No. 255 of 1976 this Court could have passed such an order in exercise of its revisional power under section 401 of the Code of Criminal Procedure.

4. It may be remembered that this Court while dealing with the Cr.A. No. 255 of 1976 noticed that a charge under section 375 read with section 376, Indian Penal Code, ought to have been framed against the respondent, but the Court did not act at that stage itself. On the other hand, it proceeded ahead with the appeal and disposed of the same by confirming the conviction and sentences passed on the respondent for the offences under sections 363 and 366 of the Indian Penal Code and thereafter directed a revision petition be registered for the aforementioned purpose. Section 216(1) of the Code of Criminal Procedure lays down that any Court may alter or add to any charge at any time before judgment is pronounced. Sub- section (4) provides for that 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 adjourn the trial for such period as may be necessary. Section 401 of the Code of Criminal Procedure dealing with the revisional powers of the High Court lays down that the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386 , 389 , 390 and so on. Section 386(e) reads as follows:

“386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) …………………………

(b) …………………………

(c) …………………………

(d) …………………………

(e) make any amendment or any consequential or incidental order that may be just or proper”.

5. This provision did occur as section 423 (d) of the Code of Criminal Procedure, 1898.

6. The Supreme Court has in Kantilal Chandulal Mehta v. State of Maharashtra and another1 while dealing with this provision held that a charge can be altered at appellate stage. What had happened in that case was, while dealing with certain appeals, the High Court of Bombay found that only one charge against the accused was framed for misappropriation of the moneys under section 406, Indian Penal Code, advanced by bank in respect of which the Magistrate had ultimately convicted the appellant on 31st August, 1966 and sentenced him to 18 months’ rigorous imprisonment and then the High Court without pronouncing, the judgment in the concerned appeal, issued the following direction:

“I direct that the charge as framed by the learned Magistrate be altered and amended in terms of the draft amendment submitted and send the case back for a new