It is ignoring that, the learned Magistrate refused
to have the petition disposed on merits with a reason that
this Court has prescribed time limit for disposal of the case.
It is not at all a good reasoning and it can no way be
allowed. The reasoning that altering of charge would
prolong the trial is also erroneous and not sustainable. A
request made by the prosecutor to alter the charge with an
allegation that the charge is not in accordance with the
report of the investigating officer could be dismissed, only if
the allegation is not true. A trial without a proper charge
would only lead to miscarriage of justice. In such
circumstances, this Court shall not hesitate to interfere in
exercise of the inherent powers vested on this Court under
Sec.482 of the Code of Criminal Procedure, though no
revision is maintainable.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3162 of 2009()
AKBAR.A., PUTHEN VEEDU, NORTH MSM
Vs
STATE OF KERALA, REP. BY PUBLIC
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :24/11/2009
Citation: 2010CriLJ2555, ILR2010(2)KeralaKER, ILR2010(2)Kerala875, 2010 (1) KHC 738, 2010(1)KLT714
The revision petitioner is the defacto complainant in
CC.No.201/2006 on the file of the Chief Judicial Magistrate
Court, Kollam. Respondents 2 to 11 are being prosecuted
by the first respondent for offence under Section 120B IPC
and other provisions. The evidence on the side of the
prosecution was closed. The respondents 2 to 11 were
questioned under Sec.313 of the Code of Criminal
Procedure and thereafter the prosecution and the accused
were being heard. Amidst the hearing, the Deputy Director
of Prosecution, Kollam, who is conducting the prosecution
filed a petition as CMP.No.9443/2009 seeking an order to
alter charge. In the affidavit accompanying the petition it
was stated that during the course of hearing it was argued
that the charge was not specific and it had prejudiced the
accused and the charge framed is not in accordance with
the final report submitted by the police and that the
beginning and end of the commission of offence under
Sec.120B IPC is not specified and that it was wrongly
mentioned that conspiracy was alleged subsequent to the
unlawful assembly and that the involvement of the 11th
accused was not specifically mentioned in the charge and
such omission may even entitle the respondents 2 to 11 for
acquittal and couldn't be cured in appeal.
2. After hearing the accused and the prosecution,
the learned Magistrate by the order impugned dated
8.10.2009 dismissed the petition. Para.2 of the order
impugned reads as follows:
"2. It is true that as per Sec.216 of the
Cr.P.C. the court may alter charge at any time
before Judgment is pronounced. But when a
charge is altered by the court after the
commencement of trial, the prosecution and
the accused shall be allowed to recall and
examine witness with reference to such
alteration. But charge in this case was framed
long back and examination of the witnesses for
both the prosecution and defence over and the
matter is heard also. According to me, if the
charge is altered at this stage, the disposal of
the case will be prolonged further. Time limit
is also prescribed by the Hon'ble High Court
for the disposal of the case. So, the petition is
liable to be dismissed."
3. Assailing the legality, correctness and the
propriety of the above order, this revision petition was filed
by the defacto complainant.
4. The learned counsel for respondents 2 to 11
raised a preliminary objection stating that the order
impugned is of an interlocutory nature and shall not be
interfered in exercise of the revisional powers. It was
argued that it is the duty of the court to frame charge and
the charge was properly framed and there is nothing to
alter the charge and that the prayer is only for altering the
charge and that even if the petition is allowed it would not
culminate the proceedings. So, the order is purely one of
interlocutory nature which is not liable to be challenged in
revision. The counsels appearing for the party respondents
canvased my attention to the decision reported in Bhaskar
Industries Ltd. v. B.D. & A.Ltd. [2001(3) KLT 307 (SC)]. At
para.8, it is held:
"[W]hether an order is interlocutory or
not, cannot be decided by merely looking at
the order or merely because the order was
passed at the interlocutory stage. The safe
test laid down by this Court through a series of
decisions is this: If the contention of the
petitioner who moves the Superior Court in
revision, as against the order under challenge
is upheld, would the criminal proceedings as a
whole culminate? If it would, then the order is
not interlocutory in spite of the fact that it was
passed during any interlocutory stage."
On the other hand, the learned counsel for the revision
petitioner submitted that the order altering charge is
revisable. In support of his argument, the decision reported
in Sreedharan v. State of Kerala (2005(2) KLT 108) was
relied on. At para.7, this Court has held:
"Framing of charge may or may not
amount to interlocutory order as it depends
upon facts of the case, the statute under which
proceedings have been initiated, as also the
nature of objections raised against it etc. If
the objection or objections raised against the
order framing charges are such that upholding
such objection/objections would result in
termination of the proceedings, then framing
of charge cannot be regarded as merely
interlocutory order for the purpose of
revisional jurisdiction under S.397(2) of the
Code."
5. Since the prayer of the Deputy Director of
Prosecution in the petition was only to alter the charge,
even if the charge is altered that would not culminate the
proceedings. In the above circumstance, applying the ratio
of the above decisions, I find that the order impugned is of
an interlocutory nature and the objection raised by the
respondent is sustainable and the order impugned is not
liable to be interfered in exercise of the revisional powers.
6. But, for this reason, I find that this Court cannot
shut its eyes in the event the order impugned is vitiated by
illegality, impropriety or error. It is not disputed that it is
the duty of the trial court to frame charge in the proper
form and the charge shall be specific. When the Public
Prosecutor brings to the notice of the Court that charge
framed is not specific or that it is erroneous or not in
accordance with the report submitted by the investigating
officer, it is for the Court to see whether there is any
substance in the allegation or not. If the charge framed is
not specific or not in accordance with the report submitted
by the police, it is the duty of the Magistrate to alter the
charge and to have a just and fair trial. The last three
sentences of the impugned order quoted above would show
that the learned Magistrate instead of examining whether
the charge framed is sufficient or proper or specific, it
dismissed the petition with a reasoning that altering of the
charge at that stage would prolong the disposal of the case.
It appears that the learned Magistrate had declined to
examine the issue because of the time limit prescribed by
this Court for the disposal of the case. Such an approach
would vitiate the trial and tantamount to miscarriage of
justice.
7. In an order in IA.No.7588/2009 in WP(C).
No.396/2009 this Court reminded the lower court that, the
time limits are fixed by superior courts in their anxiety to
ensure expeditious disposal. All subordinate courts must
realise that between the interests of justice and time limit
prescribed, it is the interests of justice that shall have to
prevail. If the trial court finds that justice in the given case
cannot be achieved within the prescribed time limit, it is for
such court to apply for extension of time. Time limits are
not fixed so that the cases can be disposed of somehow.
8. It is ignoring that, the learned Magistrate refused
to have the petition disposed on merits with a reason that
this Court has prescribed time limit for disposal of the case.
It is not at all a good reasoning and it can no way be
allowed. The reasoning that altering of charge would
prolong the trial is also erroneous and not sustainable. A
request made by the prosecutor to alter the charge with an
allegation that the charge is not in accordance with the
report of the investigating officer could be dismissed, only if
the allegation is not true. A trial without a proper charge
would only lead to miscarriage of justice. In such
circumstances, this Court shall not hesitate to interfere in
exercise of the inherent powers vested on this Court under
Sec.482 of the Code of Criminal Procedure, though no
revision is maintainable.
9. This Court in Rocky V.A. v. V.I.Vakkachan (2009
(4) KHC 422), at para.5 it held as follows:
"No objection regarding maintainability of the
revisions was raised at that time. No doubt
that would not make the revisions
maintainable. Assuming that power of revision
cannot be exercised in view of the bar under
Section 397(2) of the Cr.PC, Section 482 of
that Code empowers this Court to pass
appropriate orders if interference is warranted
on the facts of the case. Therefore I am not
inclined to dismiss the petitions for the reason
stated by the learned counsel and instead
proceed to consider the contentions raised by
learned counsel in exercise of the powers
conferred under Section 482 of the Cr.PC."
10. In the event it is revealed that an order assailed is
opposed to law or not sustainable and it is not liable to be
interfered in revision, it would be appropriate for this Court
to rectify the same in exercise of the inherent powers of
Sec.482 Crl.PC. In this case, instead of the learned
Magistrate examining whether the charge is specific and in
accordance with the report filed by the Investigating
Officer, the request of the learned Public Prosecutor was
declined for the reason which is not at all justified. So, that
order is liable to be set aside in exercise of the powers
conferred on this Court under Sec.482 Cr.PC.
11. In the result, though the revision petition is not
entertainable, as the impugned order is one of interlocutory
nature, in exercise of the inherent powers vested on this
Court under Sec.482 of the Code of Criminal Procedure, the
order impugned is set aside. The petition is remitted back
to the trial court for fresh disposal in accordance with law.
In the event the charge framed is found proper or perfect
and specific, the learned Magistrate may proceed. In the
event the charge is found not specific and appropriate, it is
upto him to make necessary alterations and to have a
disposal on merit. In case the learned Magistrate couldn't
dispose the case within the time limit prescribed by this
Court, the learned Magistrate may address this Court for
extension of time.
The Criminal Revision Petition is disposed as above.
P.S.GOPINATHAN, JUDGE.
Crl.Rev.Pet.No. 3162 of 2009()
AKBAR.A., PUTHEN VEEDU, NORTH MSM
Vs
STATE OF KERALA, REP. BY PUBLIC
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :24/11/2009
Citation: 2010CriLJ2555, ILR2010(2)KeralaKER, ILR2010(2)Kerala875, 2010 (1) KHC 738, 2010(1)KLT714
The revision petitioner is the defacto complainant in
CC.No.201/2006 on the file of the Chief Judicial Magistrate
Court, Kollam. Respondents 2 to 11 are being prosecuted
by the first respondent for offence under Section 120B IPC
and other provisions. The evidence on the side of the
prosecution was closed. The respondents 2 to 11 were
questioned under Sec.313 of the Code of Criminal
Procedure and thereafter the prosecution and the accused
were being heard. Amidst the hearing, the Deputy Director
of Prosecution, Kollam, who is conducting the prosecution
filed a petition as CMP.No.9443/2009 seeking an order to
alter charge. In the affidavit accompanying the petition it
was stated that during the course of hearing it was argued
that the charge was not specific and it had prejudiced the
accused and the charge framed is not in accordance with
the final report submitted by the police and that the
beginning and end of the commission of offence under
Sec.120B IPC is not specified and that it was wrongly
mentioned that conspiracy was alleged subsequent to the
unlawful assembly and that the involvement of the 11th
accused was not specifically mentioned in the charge and
such omission may even entitle the respondents 2 to 11 for
acquittal and couldn't be cured in appeal.
2. After hearing the accused and the prosecution,
the learned Magistrate by the order impugned dated
8.10.2009 dismissed the petition. Para.2 of the order
impugned reads as follows:
"2. It is true that as per Sec.216 of the
Cr.P.C. the court may alter charge at any time
before Judgment is pronounced. But when a
charge is altered by the court after the
commencement of trial, the prosecution and
the accused shall be allowed to recall and
examine witness with reference to such
alteration. But charge in this case was framed
long back and examination of the witnesses for
both the prosecution and defence over and the
matter is heard also. According to me, if the
charge is altered at this stage, the disposal of
the case will be prolonged further. Time limit
is also prescribed by the Hon'ble High Court
for the disposal of the case. So, the petition is
liable to be dismissed."
3. Assailing the legality, correctness and the
propriety of the above order, this revision petition was filed
by the defacto complainant.
4. The learned counsel for respondents 2 to 11
raised a preliminary objection stating that the order
impugned is of an interlocutory nature and shall not be
interfered in exercise of the revisional powers. It was
argued that it is the duty of the court to frame charge and
the charge was properly framed and there is nothing to
alter the charge and that the prayer is only for altering the
charge and that even if the petition is allowed it would not
culminate the proceedings. So, the order is purely one of
interlocutory nature which is not liable to be challenged in
revision. The counsels appearing for the party respondents
canvased my attention to the decision reported in Bhaskar
Industries Ltd. v. B.D. & A.Ltd. [2001(3) KLT 307 (SC)]. At
para.8, it is held:
"[W]hether an order is interlocutory or
not, cannot be decided by merely looking at
the order or merely because the order was
passed at the interlocutory stage. The safe
test laid down by this Court through a series of
decisions is this: If the contention of the
petitioner who moves the Superior Court in
revision, as against the order under challenge
is upheld, would the criminal proceedings as a
whole culminate? If it would, then the order is
not interlocutory in spite of the fact that it was
passed during any interlocutory stage."
On the other hand, the learned counsel for the revision
petitioner submitted that the order altering charge is
revisable. In support of his argument, the decision reported
in Sreedharan v. State of Kerala (2005(2) KLT 108) was
relied on. At para.7, this Court has held:
"Framing of charge may or may not
amount to interlocutory order as it depends
upon facts of the case, the statute under which
proceedings have been initiated, as also the
nature of objections raised against it etc. If
the objection or objections raised against the
order framing charges are such that upholding
such objection/objections would result in
termination of the proceedings, then framing
of charge cannot be regarded as merely
interlocutory order for the purpose of
revisional jurisdiction under S.397(2) of the
Code."
5. Since the prayer of the Deputy Director of
Prosecution in the petition was only to alter the charge,
even if the charge is altered that would not culminate the
proceedings. In the above circumstance, applying the ratio
of the above decisions, I find that the order impugned is of
an interlocutory nature and the objection raised by the
respondent is sustainable and the order impugned is not
liable to be interfered in exercise of the revisional powers.
6. But, for this reason, I find that this Court cannot
shut its eyes in the event the order impugned is vitiated by
illegality, impropriety or error. It is not disputed that it is
the duty of the trial court to frame charge in the proper
form and the charge shall be specific. When the Public
Prosecutor brings to the notice of the Court that charge
framed is not specific or that it is erroneous or not in
accordance with the report submitted by the investigating
officer, it is for the Court to see whether there is any
substance in the allegation or not. If the charge framed is
not specific or not in accordance with the report submitted
by the police, it is the duty of the Magistrate to alter the
charge and to have a just and fair trial. The last three
sentences of the impugned order quoted above would show
that the learned Magistrate instead of examining whether
the charge framed is sufficient or proper or specific, it
dismissed the petition with a reasoning that altering of the
charge at that stage would prolong the disposal of the case.
It appears that the learned Magistrate had declined to
examine the issue because of the time limit prescribed by
this Court for the disposal of the case. Such an approach
would vitiate the trial and tantamount to miscarriage of
justice.
7. In an order in IA.No.7588/2009 in WP(C).
No.396/2009 this Court reminded the lower court that, the
time limits are fixed by superior courts in their anxiety to
ensure expeditious disposal. All subordinate courts must
realise that between the interests of justice and time limit
prescribed, it is the interests of justice that shall have to
prevail. If the trial court finds that justice in the given case
cannot be achieved within the prescribed time limit, it is for
such court to apply for extension of time. Time limits are
not fixed so that the cases can be disposed of somehow.
8. It is ignoring that, the learned Magistrate refused
to have the petition disposed on merits with a reason that
this Court has prescribed time limit for disposal of the case.
It is not at all a good reasoning and it can no way be
allowed. The reasoning that altering of charge would
prolong the trial is also erroneous and not sustainable. A
request made by the prosecutor to alter the charge with an
allegation that the charge is not in accordance with the
report of the investigating officer could be dismissed, only if
the allegation is not true. A trial without a proper charge
would only lead to miscarriage of justice. In such
circumstances, this Court shall not hesitate to interfere in
exercise of the inherent powers vested on this Court under
Sec.482 of the Code of Criminal Procedure, though no
revision is maintainable.
9. This Court in Rocky V.A. v. V.I.Vakkachan (2009
(4) KHC 422), at para.5 it held as follows:
"No objection regarding maintainability of the
revisions was raised at that time. No doubt
that would not make the revisions
maintainable. Assuming that power of revision
cannot be exercised in view of the bar under
Section 397(2) of the Cr.PC, Section 482 of
that Code empowers this Court to pass
appropriate orders if interference is warranted
on the facts of the case. Therefore I am not
inclined to dismiss the petitions for the reason
stated by the learned counsel and instead
proceed to consider the contentions raised by
learned counsel in exercise of the powers
conferred under Section 482 of the Cr.PC."
10. In the event it is revealed that an order assailed is
opposed to law or not sustainable and it is not liable to be
interfered in revision, it would be appropriate for this Court
to rectify the same in exercise of the inherent powers of
Sec.482 Crl.PC. In this case, instead of the learned
Magistrate examining whether the charge is specific and in
accordance with the report filed by the Investigating
Officer, the request of the learned Public Prosecutor was
declined for the reason which is not at all justified. So, that
order is liable to be set aside in exercise of the powers
conferred on this Court under Sec.482 Cr.PC.
11. In the result, though the revision petition is not
entertainable, as the impugned order is one of interlocutory
nature, in exercise of the inherent powers vested on this
Court under Sec.482 of the Code of Criminal Procedure, the
order impugned is set aside. The petition is remitted back
to the trial court for fresh disposal in accordance with law.
In the event the charge framed is found proper or perfect
and specific, the learned Magistrate may proceed. In the
event the charge is found not specific and appropriate, it is
upto him to make necessary alterations and to have a
disposal on merit. In case the learned Magistrate couldn't
dispose the case within the time limit prescribed by this
Court, the learned Magistrate may address this Court for
extension of time.
The Criminal Revision Petition is disposed as above.
P.S.GOPINATHAN, JUDGE.
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