Law Web: Whether court can discharge accused after framing of charge?

The question raised in the present case about discharge of an

accused at the stage of consideration of an application under Section 216

Cr.P.C. was directly involved in the case of Tapati Bag Vs. Patitpaban

Ghosh & Ors. (supra). A learned Single Bench of the Hon'ble Calcutta

High Court after considering the provisions of Sections 227, 228 and 216

Cr.P.C. held that it is needless to mention that the question whether

charge should be framed against the accused or he should be discharged

has to be considered simultaneously and if on such consideration the Court

thinks that the accused should not be discharged and rather charge should

be framed against him, in that case the charge has to be framed against

the accused. It is evident from the scheme of the provisions of the

Chapter-XVIII of the Criminal Procedure Code as well as from the logic of

the sequence that once the Court decides to frame charge under Section

228 Cr.P.C., there is no question of discharging him at a later stage by

exercising the power under Section 227 Cr.P.C. Once charge has been

framed under Section 228 the trial has to proceed according to the

procedure provided in the sections following the Section 228 Cr.P.C. and

the process cannot be put to back-gear for discharging the accused

thereafter under Section 227 Cr.P.C. Where a charge has been framed by

the Court of Session under Section 228, the said Court thereafter cannot

discharge the accused under Section 227 Cr.P.C. Even if an accused

against whom a charge has been framed under Section 228 Cr.P.C. feels

aggrieved by the framing of charge he has either to face the trial or he

may approach the High Court in its revisional jurisdiction. If the Court of

Session remains free to discharge an accused on reconsideration

under Section 227 even after a charge has been framed under Section

228, in that case it would be open to the accused persons against whom

charge has already been framed to move the same Court one after another

for reconsideration and discharge on repeated occasions thereby making it

practically impossible to proceed with the trial of the case expeditiously or

at all, even if such moves lack merit. After taking into consideration

Section 216 Cr.P.C., it was further held that a plain reading of the section

would show that the alteration or addition referred to therein contemplates

modification of or addition to charge but not discharging an accused in

respect of a charge already framed so as to bring the trial itself to an end

in respect of such accused. There may be addition of a new charge or

even substitution of a charge in an appropriate case but Section 216 does

not contemplate discharge of an accused or the termination of the trial in

respect of any accused. Sub-section (2) requires that every alteration or

addition to a charge has to be read and explained to the accused. The

question of reading and explaining such alteration or addition would be

meaningless in a good number of cases if discharge is contemplated by

such alteration or addition. Sub-sections (3) and (4) speak of proceeding

with the trial or of directing a new trial or adjourning the trial. This also is

a clear indication that any alteration or addition to charge shall not be of

such nature as to get the accused discharged and bring the trial to an end

in respect of that accused. Sub-section (5) requires that where 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 has been already obtained on the same facts.

Here also the sub-section contemplates of proceeding with the trial with

fresh sanction, if necessary, and not ending the trial in respect of any13

accused by any obliteration of the charge. It is therefore evident

that Section 216 does not empower the court to discharge an accused and

bring the trial itself to an end in respect of an accused against whom a

charge has already been framed, without following the procedure

prescribed in the Code regarding the trial of a case. It was also held that

Section 227 being designed for a particular stage of the judicial proceeding

one cannot revert to that provision when that stage has already been

crossed. It was also held that the Court of Session has no power to

discharge an accused under Section 227 once a charge under Section 228

has already been framed.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

BENCH JAIPUR

S.B.Criminal Revision Petition No.577/2015

Smt.Anita Singh V State of Rajasthan

Dated:12-9-2016

These two Criminal Revision Petitions under Section 397 read

with Section 401 Cr.P.C. have been filed by the accused-petitioners against

the order dated 5.2.2015 passed by the Special Judge, Women Atrocities

and Dowry Cases, Jaipur Metropolitan, Jaipur in Sessions Case No.22/2009

whereby the learned trial Court dismissed the applications filed by the

petitioners under Section 216 read with Section 239 Cr.P.C. with a prayer

to discharge them for the offences for which they are being prosecuted. As

both these petitions are based on common questions of law and fact, with

the consent of learned counsel for the parties, they are heard together and

are being decided by this common order.

Brief relevant facts for the disposal of these petitions are that

marriage between the complainant-Smt.Renu Khidiya and co-accused-Shri

Bhupendra Singh took place on 22.4.2004 at Jaipur in accordance with the

Hindu Usages and Rites and FIR No.33/2006 came to be registered at

Police Station Mahila Thana (East), Jaipur on 26.5.2006 at the instance of

the complainant for offences under Sections 498-A, 406, 313 and 120-B

IPC and after investigation charge-sheet was filed for the aforesaid

offences against the petitioners and co-accused. It is to be noted that

petitioner-Smt.Anita Singh is sister-in-law, petitioner-Raghuraj Singh is

father-in-law, petitioner-Smt.Manohar Kanwar is mother-in-law of the

complainant whereas accused-petitioner Dr.Chetna Agarwal is a practising

doctor, who at the time of the said incident was allegedly working in

Meera Nursing Home, Jaipur. Learned Court below vide order dated

11.11.2010 directed charge to be framed against the petitioners for

aforesaid offences which was challenged by them in this Court by way of3

S.B.Criminal Revision Petition Nos.25/2011 and 253/2011 respectively and

the same were disposed of vide order dated 2.11.2011 in the manner that

order dated 11.11.2010 was set aside and the Court below was directed to

reconsider the question of framing of charge after considering the

judgments cited on behalf of the petitioners and pass a fresh order in

accordance with law. In compliance of the order dated 2.11.2011, the

Court below reconsidered the question of framing of charge against the

petitioners and again vide order dated 7.1.2012 charge for the aforesaid

offences was ordered to be framed against the petitioners. The order

dated 7.1.2012 was challenged by the petitioners before this Court by way

of S.B.Criminal Revision Petition No.172/2012 and S.B. Criminal Revision

Petition No.74/2012 and the same were disposed of vide order dated

13.8.2013 with liberty to the petitioners to move an application under

Section 216 Cr.P.C. and direction to the Court below to decide the same

and further liberty to the petitioners to file revision petition before the High

Court against the order which the Court below may pass on the application

to be filed by them under Section 216 Cr.P.C. In pursuance of the liberty

given to them petitioners filed two separate applications under Section 216

read with Section 239 Cr.P.C. on 19.10.2013 with prayer to discharge them

from the offences for which charge-sheet has been filed against them.

Learned Court below after hearing the respective parties dismissed the

application filed by the petitioners vide impugned order dated 5.2.2015.

Feeling aggrieved by the same, petitioners are again before this Court by

way of these revision petitions.

The moot question arising for decision in these petitions is

"Once the trial Court has ordered to frame charge for some offences4

against the petitioners and the revision petitions filed by them before this

Court challenging the order of framing of charge have been disposed of

without setting aside the order of charge, whether prayer to discharge

them can be made by the petitioners in an application subsequently filed

under Section 216 read with Section 239 Cr.P.C ?"

In support of the petitions, learned counsel for the petitioners

jointly submitted as below:-

(1) If no material/evidence is available on record to constitute an

offence for which charge has already been framed against an accused, he

can be discharged by the trial Court at any subsequent stage including at

the stage of considering an application under Section 216 Cr.P.C. also as

there is no prohibition or bar that at a subsequent stage of the

proceedings trial Court is not empowered to discharge an accused for the

offence for which charge has already been framed. Under Section 216

Cr.P.C. the trial Court is empowered not only to alter a charge already

framed against the accused and add charge for an offence for which

charge has not been framed against him, but also discharge the accused if

it is found by the Court that no material is available to consitute the

offence for which charge has already been framed. At any subsequent

stage also accused can be discharged even if fresh material and evidence

has not come on record. Court can reconsider the evidence already

available on record to arrive at a finding in fact that the essential

ingredients required to constitute the offence in question are not made

out. Reconsideration of evidence available on record does not amount to

recall/review of the previous order but only ractification of the error

committed by the Court.5

(2) In the present case, order dated 11.11.2010 was set aside by this

Court and the Court below was directed to pass fresh order after

considering and keeping in mind the judgments cited on behalf of the

petitioners but Court below without following the directions of this Court

and without considering and discussing the judgments cited before it on

behalf of the petitioners again ordered to frame charge against them in a

mechanical way without application of mind vide order dated 7.1.2012

which was again challenged by the petitioners before this Court. This Court

while disposing of the petitions filed by the petitioners vide order dated

13.8.2013 not only granted liberty to them to move application under

Section 216 Cr.P.C. but also granted further liberty to file revision petition

against the order likely to be passed on such application which clearly

shows that the question of framing of charge against petitioners was kept

open and the direction to the Court below in fact was that the issue to

frame charge is required to be reconsidered and the petitioners are liable

to be discharged if the Court finds that no offence has been committed by

them but the Court below did not consider this aspect of the matter in a

proper manner and dismissed their applications under Section 216 read

with Section 239 Cr.P.C. merely by observing that after passing of order

dated 7.1.2012, there is no substantial change in the facts and

circumstances of the case and no fresh evidence has come on record so as

to add or alter the charge already framed. Once the order dated 7.1.2012

was challenged by the petitioners before this Court and the petitions filed

by them were disposed of vide order dated 13.8.2013 with the aforesaid

liberty and direction, it clearly meant that order dated 7.1.2012 stood set

aside and a fresh order to frame charge or not was required to be passed6

by the Court below. It is to be noted that in the applications filed under

Section 216 read with Section 239 Cr.P.C., prayer for discharge was made

by the petitioners and not for alteration or addition of the charge.

(3) This Court under its revisional jurisdiction has wide power to

consider in these petitions also whether sufficient evidence is available on

record to frame charge against the petitioners for any of the offence for

which charge-sheet has been filed against them. Even if their previous

revision petitions against the order of framing of charge have not been

allowed and only disposed of on their prayer with liberty to move

application under Section 216 Cr.P.C., High Court while exercising its

revisional jurisdiction at any stage can examine the correctness, legality or

propriety of any order passed by a Subordinate Criminal Court and such

jurisdiction can be exercised even suo-moto. Hence, the correctness,

legality and propriety of the order of framing of charge can be examined

by this Court even in these petitions.

(4) In support of the present applications also, several judgments were

cited and relied by the petitioners which have although been referred in

the impugned order but they have neither been discussed nor reasons

have been recorded for their inapplicability in the present case and on this

ground alone the impugned order is liable to be set aside and quashed and

direction is required to be made to the Court below for fresh consideration.

In support of his submissions, learned counsel relied upon the

cases of Anant Prakash Sinha alias Anant Sinha Vs. State of

Haryana & Anr. reported in AIR 2016 SC 1197, Swapnil & Ors. Vs.

State of Madhya Pradesh reported in 2014 (3) Cr.Court Cases 007

(SC) and Shrerish Hardenia & Ors. Vs. State of Madhya Pradesh &7

Anr. reported in (2014) 14 SCC 406.

On the other hand, learned Public Prosecutor supported by

learned counsel for the respondent-complainant controverting the

submissions made on behalf of the petitioner, submitted as below:-

(1) As the petitions filed against the order of framing of charge dated

7.1.2012 were not allowed on merit and the same were disposed of on

the prayer of the petitioners with liberty to move application under

Section 216 Cr.P.C., that order attained finality and the petitioners were

not entitled to make fresh prayer for their discharge in the garb of

application under Section 216 Cr.P.C. Under Section 216 Cr.P.C. the prayer

that can be made is either for alteration or addition of charge and never

for discharge as seperate provision is available in Cr.P.C. to an accused for

that relief.

(2) Once the stage to discharge an accused under Section 227 or 239

Cr.P.C. is over and Court proceeds to frame charge and that order attains

finality, there is no subsequent stage at which the accused can be

discharged. Once after framing of charge trial has commenced, accused

can either be convicted or acquitted and not discharged in a sessions or

warrant case.

(3) In the present case, the application under Section 216 Cr.P.C. has

rightly been dismissed by the Court below as there was no substantial

change in the facts and circumstances of the case and no fresh evidence

was made available on record. Once on the basis of evidence available on

record order to frame charge has been passed which has been upheld by

this Court also, there is no question of discharge of the petitioners even by

this Court in these petitions.8

In support of his submissions, learned counsel for the

respondent-complainant relied upon the case of Tapati Bag Vs.

Patitpaban Ghosh & Ors. reported in 1993 Cr.L.R.3912 (Calcutta

High Court).

I have considered the submissions made on behalf of the

respective parties and the material made available on record as well as the

relevant legal provisions and the case law relied upon on behalf of the

parties.

Sub-section (1) of Section 216 Cr.P.C. which falls under

Chapter-XVII provides that any Court may alter or add to any charge at

any time before judgment is pronounced. This provision does not speak

about discharge of an accused against whom charge for an offence has

already been framed and it speaks only for alteration or addition to any

charge which has already been framed against such an accused. ChapterXVIII

of the Code provides for trial before a Court of Session and Section

227 thereof provides that if upon consideration of the record of the case

and the documents submitted therewith and after hearing the submissions

of the accused and the prosecution in this behalf, the Judge considers that

there is not sufficient ground for proceeding against the accused, he shall

discharge the accused and record his reasons for so doing. Section 228

provides that if after such consideration and hearing as aforesaid the

Judge is of the opinion that there is ground for presuming that the accused

has committed an offence which is exclusively triable by the Court he shall

frame in writing a charge against the accused. It is thus clear that in a

case which is triable before a Court of Sessions, these provisions provide in

what condition and in what manner the accused can be discharged for an9

offence for which he has been prosecuted and in what condition and the

manner the Sessions Judge would proceed to frame charge against him. A

simultaneous reading of Section 216 and Sections 227 and 228 Cr.P.C.

makes it abudantly clear that these provisions are entirely separate and

independent to each other and where Section 216 Cr.P.C. provides for

alteration or addition of a charge in a case in which charge has already

been framed against an accused whereas Sections 227 and 228 provide for

discharge of an accused at an initial stage or framing of charge against

him in a Sessions case. I am of the considered view that in a sessions case

once the Court proceeds to frame charge against an accused after

declining his prayer to discharge him for the offence for which he has been

prosecuted by way of charge-sheet, there is no subsequent stage at which

the accused can be discharged. Similarly, Section 239 which falls under

Chapter-XXI of the Code providing for trial of warrant cases by Magistrates

provides that if upon considering the police report and the documents sent

with it under Section 173 and making such examination, if any, of the

accused as the Magistrate thinks necessary and after giving the

prosecution and the accused an opportunity of being heard the Magistrate

considers the charge against the accused to be groundless, he shall

discharge the accused and record his reasons for so doing. This provision

also clearly speaks about discharge of an accused at an initial stage in

warrant cases. According to Section 240 Cr.P.C. if upon such

consideration, examination, if any, and hearing, the Magistrate is of the

opinion that there is ground for presuming that the accused has committed

an offence triable under this Chapter, which such Magistrate is competent

to try and which in his opinion could be adequately punished by him, he10

shall frame in writing a charge against the accused. These provisions also

clearly state that in warrant cases if the Magistrate declines to discharge

the accused for the offence for which he has been prosecuted and

proceeds to frame charge against him, there is no subsequent stage at

which the accused can be discharged in any circumstance.

Hon'ble Supreme Court in the case of Anant Prakash Sinha

alias Anant Sinha Vs. State of Haryana & Anr.(supra) after

considering many of its previous decisions, in Para 16 of the report has

held that:

"The court can change or alter the charge if there is defect or

something is left out. The test is, it must be founded on the material

available on record. It can be on the basis of the complaint or the

FIR or accompanying documents or the material brought on record

during the course of trial. It can also be done at any time before

pronouncement of judgment. It is not necessary to advert to each

and every circumstance. Suffice it to say, if the court has not

framed a charge despite the material on record, it has the

jurisdiction to add a charge. Similarly, it has the authority to alter

the charge. The principle that has to be kept in mind is that the

charge so framed by the Magistrate is in accord with the materials

produced before him or if subsequent evidence comes on record. It

is not to be understood that unless evidence has been let in,

charges already framed cannot be altered, for that is not the

purport of Section 216 Cr.P.C."

In the aforesaid case, Hon'ble Court no where has held that

while considering an application under Section 216 Cr.P.C. or otherwise

considering the issue regarding alteration or addition of charge Court is

empowered to discharge an accused against whom charge has already

been framed at any subsequent stage of the proceedings. Hon'ble Court in

this case has only held that in what manner, and on what material and

evidence, Court can add or alter the charge.11