It is trite to say that Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alternation or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed. Suffice it to say that such practice is highly deplorable, and if followed, should be dealt with sternly by the courts. {Para 11}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. ……..OF 2024
(@SPECIAL LEAVE PETITION (Crl.) No.2029 OF 2018
K. RAVI Vs STATE OF TAMIL NADU & ANR.
Author: BELA M. TRIVEDI, J.
Dated: AUGUST 29, 2024.
1. Leave granted.
2. The instant appeal filed by the Appellant – Defacto Complainant arises
out of an extremely unusual and untenable Judgment and Order dated
27.07.2017 passed by the High Court of Judicature at Madras in
Criminal Revision being Crl.R.C. No.1268 of 2016 filed by the
Respondent No. 2 (originally Accused No. 2) under Section 397 and
401 of Cr.P.C., whereby the High Court while allowing the said
Revision Application set aside the order dated 18.10.2016 passed by
the Principal Sessions Judge, Dharmapuri framing charge in SC No.90
2
of 2015, and directed the further investigation in Crime No.2074 of
2009 under Section 173(8) of Cr.P.C.
3. The brief facts leading to the present appeal are that an FIR being No.
2074 of 2009 came to be registered on 24.11.2009 at Police Station,
Dharmapuri against 9 accused including the Respondent No. 2 (A-2)
for the offences under Section 147, 148, 323, 324, 307 and 302 of
IPC. The said FIR was registered at the instance of the defacto
complainant ADMK Ravi i.e., the present appellant. It was alleged inter
alia in the said FIR that on 24.11.2009, the accused no. 1 S.R. Vetrivel,
AIADMK Town Secretary along with his group prevented the
complainant and his group from filing the nomination at AIADMK Party
Office at Dharmapuri and also started threatening the complainant.
The Accused Vetrivel thereafter shouted to bring weapons that were
kept in a vehicle parked at the ground floor of the Dharmapuri District
Party Office and the Accused Baskar son of Mathikonpalayam
Pachiyappan (the Respondent No. 2 herein) brought the weapons kept
in his Tata Safari White Car. Thereafter, the accused Vetrivel holding
the knife ran towards the brother of the complainant i.e. Veeramani,
who was running towards the complainant. Thereafter the accused
Mathikonpalayam Annadurai caught hold of Veeramani and the
accused Vetrivel stabbed Veeramani with knife on his chest and the
accused Baskar (R-2) gave a blow on the head of Veeramani
3
repeatedly and also beat the complainant with the iron pipes. The
other accused also assaulted the complainant and others as narrated
in the said FIR. Thereafter the complainant and his brother Veeramani
were taken to the Dharmapuri government hospital by some people for
treatment, where his brother Veeramani expired during the course of
treatment.
4. The Investigating Officer after collecting sufficient evidence against all
the accused submitted chargesheet implicating 31 accused before the
Court of Judicial Magistrate, who committed the case to the Court of
Sessions for trial.
5. The Respondent No. 2 filed an application before the Sessions Court
seeking his discharge from the case under Section 227 of Cr.P.C. in
the said Sessions case, which came to be dismissed by the Sessions
Court vide the order dated 01.07.2016. The said order came to be
challenged by the Respondent No. 2 before the High Court by filing a
Revision Application being No. Crl.R.C. No. 953 of 2016. The said
Revision Application came to be dismissed by the High Court vide the
order dated 05.08.2016 specifically holding that there were sufficient
incriminating materials available against the Respondent No.2 to frame
the charge and that the Sessions Court had rightly dismissed the
application filed by the Respondent No. 2 under Section 227 of Cr.P.C.
4
6. It appears that thereafter the Sessions Court framed charge against all
the accused. The Respondent No. 2 (A-2) was charged for the offence
under Section 302 r/w 149, 147, 148 and 324 of IPC. The Respondent
No.2 along with other accused again filed a vexatious application
being CRMP No. 1679/2016 in SC No. 90/2015, under Section 216 of
Cr.P.C seeking alteration of the charge on the ground that the accused
no. 2 and others were not present at the scene of offence on
24.11.2009. The said application came to be dismissed by the
Sessions Court vide the order dated 18.10.2016 specifically observing
that there were statements of eye witnesses available on record to
show that the Respondent No.2 (A-2) was present at the scene of
occurrence. From the statements of LW-1 Ravi, LW-2 Govindam, LW-3
Tamilarasu, LW-4 Dhandapani and LW-5 Andiappan the role of the
accused no. 1 and 2 was also revealed. It was also observed that the
charge was framed against all the accused based on material on
record available with the Court, and that as per the settled legal
position the charge could be altered at any stage of the proceedings.
Being aggrieved by the said order the Respondent No.2 preferred the
Revisional Application being Crl.R.C. No.1268 of 2016, wherein the
High Court passed the impugned order as stated hereinabove.
5
7. From the above conspectus of events, it clearly transpires that the
Respondent No.2 after having failed to get himself discharged from the
Sessions Court as well as from the High Court in the first round of
litigation, filed another vexatious application before the Sessions Court
under Section 216 of Cr.P.C., after the framing of charge by the
Sessions Court, for modification of the charge. The Sessions Court
having dismissed the said application, the Respondent No.2 preferred
the Revisional Application before the High Court under Section 397
and 401 of Cr.P.C. The High Court in its unusual impugned order,
discharged the Respondent No. 2 (A-2) from the charges levelled
against him, though his earlier application seeking discharge was
already dismissed by the Sessions Court and confirmed by the High
Court and that position had attained finality. The High Court utterly
failed to realise that the order impugned against it was the order
passed by the Sessions Court rejecting the application of the
Respondent No. 2 seeking modification of the charge framed against
him under Section 216 of Cr.P.C., and the said order was an order of
interlocutory in nature.
8. It is pertinent to note that the order dismissing application seeking
modification of charge would be an interlocutory order and in view of
6
the express bar contained in sub-section (2) of Section 397 Cr.P.C.,
the Revision Application itself was not maintainable.
9. At this juncture, it would be apt to refer to the observations made by
this Court in Amit Kapoor vs. Ramesh Chander and Another1
,
explaining the scope of Section 397 Cr.P.C. It was held that -
“12. Section 397 of the Code vests the court with the power to
call for and examine the records of an inferior court for the
purposes of satisfying itself as to the legality and regularity of
any proceedings or order made in a case. The object of this
provision is to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders, which upon the
face of it bears a token of careful consideration and appear to
be in accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under challenge
are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes, but
are merely indicative. Each case would have to be determined
on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction
of the higher court is a very limited one and cannot be exercised
in a routine manner. One of the inbuilt restrictions is that it
should not be against an interim or interlocutory order. The
Court has to keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given
case, it may be reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within the
1
(2012) 9 SCC 460
7
categories aforestated. Even framing of charge is a much
advanced stage in the proceedings under the CrPC.”
10.Thus, the scope of interference and exercise of jurisdiction under
Section 397 Cr.P.C. is extremely limited. Apart from the fact that subsection 2 of Section 397 prohibits the Court from exercising the powers
of Revision, even the powers under sub-section 1 thereof should be
exercised very sparingly and only where the decision under challenge
is grossly erroneous, or there is non-compliance of the provisions of
law, or the finding recorded by the trial court is based on no evidence,
or material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely by framing the charge. The Court exercising
Revisional Jurisdiction under Section 397 should be extremely
circumspect in interfering with the order framing the charge, and could
not have interfered with the order passed by the Trial Court dismissing
the application for modification of the charge under Section 216
Cr.P.C., which order otherwise would fall in the category of an
interlocutory order.
11. It is trite to say that Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alternation or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed. Suffice it to say that such practice is highly deplorable, and if followed, should be dealt with sternly by the courts.
12.So far as the facts of the present case are concerned, as stated
hereinabove the Respondent No.2 had miserably failed to get himself
discharged from the case in the first round of litigation, when he had
filed the application under Section 227 Cr.P.C, still however he filed
another vexatious application seeking modification of charge under
Section 216 of Cr.P.C. to derail the criminal proceedings. The said
Application also having been dismissed by the Sessions Court, the
order was challenged before the High Court by filing Revision
Application under Section 397 Cr.P.C. The High Court, on an
absolutely extraneous consideration and in utter disregard of the
settled legal position, allowed the Revision Application filed by the
Respondent No. 2, though legally untenable, and set aside the charge
framed by the Sessions Court against the Respondent No. 2. The said
order being ex facie illegal, untenable and dehors the material on
record, the same deserves to be set aside.
13. In that view of the matter, impugned order is set aside. The order
passed by the Sessions Court is restored. The Respondent no. 2 (A-2)
having sufficiently derailed the proceedings by filing frivolous and
untenable applications one after the other misusing the process of law,
the present Appeal is allowed with cost of Rs. 50,000/- to be paid by
the Respondent No. 2 to the Appellant within two weeks. The
Respondent No. 2 shall first deposit the cost in the office of this Court,
which shall be permitted to be withdrawn by the Appellant.
14.The Sessions Court is directed to proceed further with the trial against
all the accused including the Respondent No. 2 (A-2) in accordance
with law and as expeditiously as possible. All the parties are directed
to cooperate the trial court to conclude the trial as expeditiously as
possible. It is further directed that non-cooperation of any of the
accused in proceeding with the trial shall entail cancellation of their
bail.
15.The Appeal stands allowed, with cost as directed. The office shall
ensure compliance of the order of payment of cost by the Respondent
No. 2, and report to the Court in case of non-compliance.
……………………………………J.
[BELA M. TRIVEDI]
.……………..……………………. J.
[SATISH CHANDRA SHARMA]
NEW DELHI;
AUGUST 29, 2024.
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