Court No. - 53
Case :- CRIMINAL REVISION No. - 1354 of 2018 Revisionist :- Satish Chand And Another Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Lalit Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Lalit Kumar Shukla, learned counsel for the revisionists, Sri Kamal Singh Yadav along with Sri Avaneesh Shukla appearing for the State The revisionists were reported to the police for offences punishable under Sections 323, 452, 328 IPC, Police Station Kotwali, District Mathura, wherein after investigation the police submitted a charge sheet under Sections 328/34, 452, 323/34 IPC. In due course the case was committed to the Sessions, one of the offences being exclusively triable by the Sessions. The trial has come to a close and arguments have been heard and judgment reserved.
At this stage the learned trial Judge discovered that in the case diary since the victim died on 08.07.2012, the Investigating Officer by means of Parcha no. SCD-II dated 20.08.2014 has added Section 304 IPC. However, on account of a clerical error in the subsequent part of the case diary and in the charge sheet, there is no reference to Section 304 IPC, in consequence of which the revisionists have not been tried in relation to the charge under Section 304 IPC at all.
Learned Trial Judge looking to the aforesaid facts has, by the impugned order, put the revisionists back on trial with a direction that a charge under Section 304 IPC is required to be framed against them. The delivery of judgment was deferred. It is against the said order that the revisionists have come up.
Sri Lalit Kumar Shukla, learned counsel for the revisionists has argued that the case having proceeded to conclusion of trial and judgment reserved, it was not open to the Trial Judge to go back and direct that on a charge that was never framed, the revisionists be now tried. Section 216 Cr.P.C. reads as under:-
“Section 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 has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”
A perusal of Section 216(1) shows that the Court is empowered to alter or add to any charge “at any time” before a judgment is pronounced. Thus, it cannot be said that the Trial Judge did not have jurisdiction to add to the existing charge, the proposed charge under Section 304 IPC on the basis of evidence which by sheer clerical mistake went unnoticed.
The finding of the learned Trial Judge is clear that material had come in the case diary that the victim having died in consequence of the injuries sustained, there was an addition of an offence under Section 304 IPC in Parcha No. SCD-II by the Investigating Officer, but on account of a clerical error in the charge sheet the same could not be mentioned.
The learned Trial Judge in the opinion of this Court has committed no error in such circumstances in choosing to exercise powers under Section 216(1) Cr.P.C. No interference with the impugned order is warranted.
The criminal revision fails and is hereby dismissed.
However, looking to the fact that that the revisionists were on bail throughout trial in relation to the offences charged, but with the addition of a charge under Section 304 IPC, they would be required to surrender and seek fresh bail, it is directed that in case the revisionists surrender before the court below within 45 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 45 days from today no coercive action shall be taken against the revisionists. However, in case, the they do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
It is further in the fitness of the things, particularly the fact that the trial had already proceeded to conclusion and judgment was reserved, that the trial court shall now proceed with the trial on day-to-day basis and conclude to the same in relation to added charge or the other charges already tried within a period of three months.
Order Date :- 26.4.2018 Anoop