Necessary conditions for alteration of charge by court

Equivalent Citation: 2011CriLJ1710

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Rev. No. 194 of 2010

Decided On: 19.11.2010

Appellants: Rakesh Kumar Luthra
Vs.
Respondent: State of H.P.

Hon'ble Judges/Coram:
Dev Darshan Sud, J.

Criminal - Alteration of charge - Section 216 of Criminal Procedure Code, 1973 (Cr.P.C.) - Rules 47 and 48 of Indian Arms Rules, 1962 - Trial Court allowed Application of prosecution filed under Section 216 of Cr.P.C. and altered charges against Petitioner - Hence, this Petition - Whether, order passed by Trial Court was justified - Held, Accused along with co-accused had crossed toll tax barrier in his car without payment of tool tax and picked up quarrel and fired one shot from his revolver - Charge under Section 307/34 I.P.C. framed against Accused was not made out from final report under Section 173 Cr.P.C. and accompanying documents filed by police - Accused was found to had prima facie committed offence of preparation of false documents and violation of Rules 47 and 48 of Rules, 1962 - However, application preferred by Accused under Section 216 Cr.P.C. was left to be considered at later stage - Both applications could not be disposed of together, was not indicated on record and even application filed by Accused was not considered - Evidence of prosecution being already on record, there was no bar to have considered both applications together - Further, Section 216 of Cr.P.C. itself requires indication of probability on basis of which charge requires to be altered - Therefore, order passed by Trial Court was set aside - Petition allowed.

"Charge against accused shall not be altered if it is not made out from final report and accompanying documents filed by police."

1. The Petitioner is aggrieved by the order passed by the learned trial Court allowing the application of the prosecution filed under Section 216 Code of Criminal Procedure with a prayer that the charges against the Petitioner be altered.

2. It is alleged by the prosecution that on 13th May, 2006, a report was lodged by Amrik Singh at Police Station, Haroli alleging that at around 9.35 p.m. when he was discharging his duties on the Santokhgarh barrier, one Opel Corsa Car bearing registration No. PB-07K-0906 approached the barrier and when he asked to stop it, the driver accelerated the car and ran away from there. Thereafter another car being driven by Raman Bali came there and the offender was given a chase and was apprehended in the bazaar. During this brawl, the assailant is supposed to have taken out a pistol from his pocket and fired at Raman Bali. The Petitioner was charged for offences under Sections 308, 320 and 334 I.P.C. and Sections 25, 27, 54 and 59 of the Arms Act. During the course of the trial, 17 witnesses were cited and examined. An application under Section 216 Code of Criminal Procedure was filed praying for alteration of the charge. The averment made in the application is:

2 That in the present case charge against accused Rakesh Kumar Luthra has been wrongly framed under Section 307 IPC whereas the allegation against this accused is that he has deposited the revolver of accused S.S. Randhave in his Gun house vide receipt No. 197 dated 10.5.2006 by making antedate entry in order to save and screen the offender from the punishment and have prepared a forged/false document by conspiring with the accused persons

3. The learned court holds that on the evidence of PW16 Amrik Singh, who has lodged the complaint, the Petitioner along with his co-accused did not pay toll tax but fled away from there. They were chased and intercepted in Santokhgarh where there was a scuffle and purported firing etc. Thereafter, according to the learned trial court, the evidence disclosed by the present accused-Rakesh Kumar was charged under Section 307/34 I.P.C. which is not made out from the final report under Section 173. He is supposed to have been prima facie found involved in preparation of false documents and violation of the provision of Section 47 and 48 of the Arms Rules, 1963. Therefore, charges under Sections 465 I.P.C. and 30 of the Arms Act read with Rules 47 and 48 of the Indian Arms Rules were framed against the Petitioner. In these circumstances, all witnesses of the prosecution were summoned for re-cross-examination. The order also records that the accused persons have filed application under Section 216 Code of Criminal Procedure and stated that according to the evidence on the record, charges under Section 307 I.P.C. was not made out and therefore, they could not be tried for such offences.

4. The powers of the Court under Section 216 Code of Criminal Procedure are indeed vast. It provides:

216 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 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 aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction 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

5. This power is hedged in by an important limitation and there is sufficient material on the record justifying the alteration of the charge. {See: Ishwar Chand Amichand Govadia and Ors. v. State of Maharashtra and another MANU/SC/8548/2006 : (2006) 10 S.C.C. 322}

6. In Rajendra Singh Sethia v. The State and others MANU/WB/0270/1987 : 1989 Cri.L.J.255, the Court holds that the power to alter a charge cannot be exercised unless there are evidence on record to support the addition or alteration of charge etc.

7. In Hansanbhai Valibhai Qureshi v. State of Gujarat and Ors. MANU/SC/0302/2004 : (2004) 5 SCC 347, the court holds that if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.

8. What I find from the record is that the learned Court does not indicate with certainty as to what was the material which has come from the witnesses to show that the Petitioner is, in fact, involved for the offences as alleged and that the charge requires to be altered. The pleading on the basis of which the charge is sought to be altered has been set out above. It is in general terms. If the order is considered, it would show that it does not indicate as to how and on what basis the alteration is sought. The operative part of the order reads:

I have heard both the parties and had carefully gone through the record. The case of the prosecution was that PW16 Amrik Singh had been working as In-charge Toll Tax Barrier, Ajouli. On 13.5.2006 at about 9.30 p.m. the accused person No. 1 Surjeet Singh along with co-accused persons Sukhdev Singh and Lakhwinder Singh had crossed toll tax barrier in his car No. PB-07-K-0906 without payment of tool tax. PW16 had chased the car and had intercepted the name in the area of Santokhgarh. When asked for crossing the barrier without payment of tool tax, the accused person No. 1 to 3 had picked up a quarrel and had fired one shot from his revolver. There was scuffle in between the parties and a piece of shirt of the accused person No. 1 had been torn and had been taken into possession by the complainant party. Crime under Sections 307, 323 IPC and 25 of the Arms Act stood registered against the accused person No. 1 Surjeet Singh and his two companions noted above. It is the case of the prosecution that with a view to wriggle out of the charge, the accused person No. 1 had managed to deposit his revolver with the accused person Rakesh Kumar in back date i.e. on 10.5.2006. The accused person Rakesh Kumar had been registered Arms and Ammunition Dealer of Batala. The accused person Rakesh Kumar had prepared false document and had violated the provisions of rules 47 and 48 of the Indian Arms Rules, 1962 Vide order dated 14.8.2008, the then learned Sessions Judge had framed charge under Section 307/34 IPC against accused person Rakesh Kumar. The charge as framed against the accused person Rakesh Kumar was not made out from final report under Section 173 Code of Criminal Procedure and the accompanying documents filed by the police. The accused person Rakesh Kumar as per record is found to have prima facie committed offence of preparation of false documents and violation of the provisions of rules 47 and 48 of the Indian Arms Rules, 1962. As such, charge under Section 465 IPC and Section 30 of the Arms Act read with rules 47 and 48 of the Indian Arms Rule, 1962 framed against the accused person Rakesh Kumar. The accused person Rakesh Kumar pleaded not guilty. He wanted to recross-examine the witnesses.

9. What requires to be considered is also the fact that the application preferred by the accused under Section 216 Code of Criminal Procedure has been left to be considered at a later stage. Why both these applications could not be disposed of together, has not been indicated on the record. Even if the charge was altered, what was the evidence requiring such alteration which I find is totally lacking in the order passed by the learned trial Court. Moreover as I noticed that even the application filed by the accused has not been considered. The evidence of the prosecution being already on the record, there was no bar to have considered both the applications together.

10. I have not pronounced on the merits of the case either of the prosecution or of the Petitioner. Needless to say that Section 216 Code of Criminal Procedure itself requires indication of the probability on the basis of which the charge requires to be altered. This petition is accordingly allowed. Order dated 1.9.2010 is quashed and set aside. Record of the trial Court is sent back and the case be proceeded further in accordance with law.

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