Supplementary affidavit filed today to bring on record the certified copy of the charge sheet filed in the case concerned, is taken on record.
The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the order dated 27.7.2016, passed by Additional Sessions Judge, Court No.1, Meerut, in S.T. No.363 of 2012 under Sections 147,148,308,504 and 506 I.P.C. Police Station:Jani, District Meerut, whereby the learned Magistrate has rejected the application moved by the complainant/applicant for alteration/addition of additional charge under Section 326 and 307.
Learned counsel for the applicant has submitted that the police after investigation had filed charge-sheet under Section 307 I.P.C. along with other sections. However, the learned Magistrate, while framing charge, instead of framing charge under Section 307 I.P.C., framed charge under Section 308 I.P.C. ignoring the statement of the Doctor, recorded under Section 161 Cr.P.C. Learned counsel for the applicant has submitted that after the statement of the doctor, who was examined as P.W.6, during the trial, and who stated that the injury sustained by the injured was dangerous to life and could have been proved fatal, the applicant moved an application under Section 216 Cr.P.C. before the trial court to frame charge under Section 307 and 326 I.P.C., against the accused persons which was rejected by the trial court, by the impugned order dated 27.7.2016 on the flimsy grounds. Hence it has been prayed by learned counsel that the impugned order be set aside and the court below be directed to pass fresh orders on the application moved by applicant for alteration/addition of charge.
Learned A.G.A. has opposed the application.
Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the records.
A perusal of the impugned order shows that the learned trial judge has rejected the application on the following four grounds:
1. that the applicant is neither the first informant nor the injured,
2. the application moved under Section 216 Cr.P.C. has not been moved by the Public Prosecutor,
3. Had there been any intention to kill on the part of the accused persons, they would have inflicted repeated blows on the injured and not only a single blow, as in the instant case.
4. the trial is at concluding stage and the alteration or addition of charge will cause delay in its final disposal.
Looking into the facts and circumstances of this case in wake of the well settled legal position, I do not find much substance in any of the aforesaid grounds on which the learned trial court has rejected the application for the following reasons:-
It is true that the applicant is neither the injured nor the first informant in the case but he is the father of the injured who being the legal heir, comes in the category of "victim" as per the definition of 'victim' provided under the Cr.P.C. and he has a right to move an application before the court.
Thus the first ground on which the application has been rejected by the trial court, is unsustainable.
So far as the second ground on the basis of which the court below has rejected the application moved by the applicant, is concerned, the Hon'ble Apex Court in a catena of judgements has laid down the law that the victim of a case or the legal heirs of the victim can move the court directly if the Public Prosecutor fails to perform its duty.
In the typical adversary system of administration of criminal justice, the victim takes a back seat behind the stage due to the reason that prosecution is conducted by the State, it being custodian of public safety and public order and the status of victim or complainant is that of a witness only. Therefore, the possibility can not be ruled out that the Public Prosecutor, having no personal interest sometimes inadvertently conducting the trial may fail to conduct it properly. This state of affairs was considered by Committee for reform in Criminal Justice (Malimath Committee) at length and it made a series of recommendations to put the victim of crime back at the centre of Criminal proceedings and to participate in the trial including the right to provide evidence, to put questions to witnesses with the leave of the court, to be informed of the status of investigation, to move court to ensure proper investigation, to be heard on issues relating to bail and withdrawal of prosecution, to advance argument after the prosecutor has submitted his arguments, and to participate in settlements of compoundable offences. Although many of the aforesaid recommendations are yet to be clothed with legislative mandate, yet it indicates a tendency of our legal system to accord the victim or aggrieved a dominant role to play in a criminal trial, particularly in grave offences, who were hitherto placed at back foot.
The same problem arose before the Hon'ble Apex Court in the case of Sister Mina Lalita Baruwa Vs. State of Orissa and Ors, AIR 2014 SC 782. In the aforesaid case before the Hon'ble Supreme Court, the Public Prosecutor having not bothered to take any steps, the application was moved by the victim/appellant herself before the learned trial Judge. However, the learned trial Judge, observing that such an application at the instance of the victim and not having been filed by the Special Public Prosecutor being not maintainable, rejected the application solely on the ground of maintainability. Aggrieved by the said order, the victim/appellant moved the High Court, but the High Court too, making reference to Section 301 Cr.P.C. took the view that the appellant as an informant had a very limited role to play and it was beyond the authority granted to an informant or a private person under Section 301 Cr.P.C. The matter went to Hon'ble Supreme Court and the Hon'ble Supreme Court set-aside both the aforesaid orders passed by the trial court and also by the High Court. Some relevant extracts from the judgment of the Apex Court are quoted below:
"The High Court committed a serious illegality in merely stating that Under Section 301 Code of Criminal Procedure there is no scope for a victim as a private party to take any effective step to rectify a serious fallacy......"
"We are convinced that the grievances as projected by the Appellant, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the Appellant by simple making a reference to Section 301 Code of Criminal Procedure in a blind folded manner should have made an attempt to reconcile Sections 301 and 311 Code of Criminal Procedure in such peculiar situations and should have ensured that the trial proceeded in the right direction....."
"In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of a vital information placed before it. It can also be said that in the process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations........"
Likewise, in J.K. International Vs. State (Govt of NCT of Delhi) and Ors, (2001) 3 SCC 462, the Hon'ble Supreme Court considered the extent to which a complainant can seek for the redressal of his grievances in the on going criminal proceedings as under:
"The scheme envisaged in the Code of Criminal Procedure (for short "the Code") indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance....."
"An aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police...."
The same view has been expressed by the Hon'ble Apex Court in Zahira Habibullah H.Sheikh and Anr Vs. State of Gujarat and Ors, (2004 ) 4 SCC 158.
"the courts have to take a participatory role in a trial. They are not expected to be tape recorders. They have to monitor the proceedings in aid of justice. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or derelection of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."
The third ground on the basis of which the learned trial court has rejected the application of the applicant also appears unsustainable in view of the settled law that even in a case of no injury Section 307 I.P.C., may be attracted. Considering the nature of injury as mentioned in the injury report, it cannot be said, that only due to the reason that a single blow was inflicted and had there been any intention to kill, repeated blows would have been inflicted and therefore, Section 307 is not made out. The application should not have been rejected by the trial court, on this ground.
So far as the last ground relating to delay in conclusion of the trial is concerned, only on the ground that some delay will be caused, the justice should not be denied to a person. There is no need to re-examine each and every witnesses if a charge is altered. The trial court may also direct the defence counsel to limit himself only those question relating to Section 307. The attendance of witnesses or the accused can be procured by coercive measure, if the trial court finds any deliberate delay on their part. It is always to be kept in mind that an accused may be punished for a smaller offence even though charge has been framed under graver offence but he cannot be punished for such offence which is graver than the offence, he is charged with. At the stage of framing charge nothing can be said about the ultimate result of trial. The trial may result in punishment of accused for some lesser offence or even in his acquittal depending on the reliability of prosecution case. No prejudice is going to be caused to the applicants by alteration of charge.
In view of the above discussion, the application is allowed and the impugned order dated 27.7.2016, is set-aside.
The matter is remanded to the learned trial court to pass a fresh order, within a period of one month from the date of production of certified copy of the order before it, on the application moved by the applicant under Section 216 Cr.P.C., in the light of the observations made by this court.
Order Date :- 3.10.2016-SB