Dismissed

Abdul Rahiman v. State of Kerala

Kerala HC28 Jun 2012Crl.Rev.Pet/1418/2012

Case brief

AI extract

What is this about?

Kerala HC dismissed a criminal revision challenging the trial court's alteration of charge under Cr.P.C. 216. The court held the earlier withdrawn petition was a bar, yet exercised inherent powers to examine merits. It found the alteration was permissible re-framing based on the final report without prejudice as the petitioner declined to adduce further evidence.

What did the court decide?

The revision petition which otherwise lacked merit in view of section 397(3) Cr.P.C. was disposed of by dismissal after exercise of inherent jurisdiction.

Abdul Rahiman Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934

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Crl.Rev.Pet.No. 1418 of 2012 ()

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AGAINST THE AMENDMENT OF THE CHARGE IN SC.512/2010 of PRINCIPAL ASSISTANT SESSIONS COURT, ERNAKULAM

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REVISION PETITIONER(S)/REVISION PETITIONER/ACCUSED NO.4:

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ABDUL RAHIMAN @ B.M.A. RAHIMAN @ BECHU RAHIMAN, AGED 54 YEARS, S/O. AHMAD KUNJI, SABIRA COTTAGE, RAMDAS NAGAR, KADALOOR VILLAGE, KAZARAGOD DISTRICT RESIDING AT H NO. 99, VYMA NEAR POST OFFICE MAVELIPURAM, KAKKANADU.

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BY ADV. SRI.JOHN S.RALPH

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COMPLAINANT(S)/RESPONDENT/STATE/ACCUSED (ACCUSED NO. 2 AND 5 ARE ABSCONDING):

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STATE OF KERALA REPRESENTED BY THE PROSECUTOR

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HIGH COURT OF KERALA AT ERNAKULAM, COCHIN-682031.

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SHOBHA JOHN, AGED 42 YEARS

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W/O. BABU, CHENNANITHIL HOUSE, KARUKULAM

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TRIVANDRUM, RESIDING AT PENIL APARTMENT, MUKKOLA

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KALLAYAM VILLAGE

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THIRUVANANTHAPURAM -695 214

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(NOW IN JUDICIAL CUSTODY)(A1).

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BINIL KUMAR, AGED 38 YEARS

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S/O. GOPALAKRISHNAN, BINIL BHAVAN, VELLARAKARA

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VELLARA VILLAGE, NEYYATTINKARA TALUK

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THIRUVANANTHAPURAM- 595 016 (ABSCONDING-A2).

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ANIL KUMAR, AGED 42 YEARS

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S/O. THANKAPPAN, THACHAENGARY HOUSE

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MARUTHEL KUZHI MARKET, PANGODU

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SASTHAMANGALAM VILLAGE, TRIVANDRUM - 695 010. (A3).

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ASHIF, AGED 31 YEARS

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(ABSCONDING -A5) S/O. MUHAMMED KUNJU,

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XVIII/469 PULIKOORKKARA

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SIRIBAGULU VILLAGE, KAZARGOD DISTRICT - 674 114.

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Crl.Rev.Pet.No. 1418 of 2012 ()

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ABDUL SAHAD, AGED 34 YEARS S/O. ALI, PULIKOOR HOUSE, XIII/136 PULIKOOR KARA, SHIRIBAGULU VILLAGE, KAZARGOD-674 114 (A6).

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ABDUL SATHAR, AGED 42 YEARS

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S/O. ABDUL RAHIMAN, THEKKEPURAYIL VEEDU, PUROPPATT

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THRIKKARIPOOR VILLAGE, HOSDURG TALUK

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KAZARGOD - 674 113(A7).

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ABDUL MAJEED @ MAJEED, AGED 40 YEARS

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S/O. ISMAIL, HAZEENA MANZIL, H/NO. XVIII/464

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PULIKOOKKARA KARA, GIRIBAGULU VILLAGE

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KAZARGOD DISTRICT - 674 113(A8).

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SHERIFF @ UMBU, AGED 43 YEARS S/O. MUHAMMED KUNJU, MM MANZIL NO. XVIII/446 PULIKOORKKARA, GIRIBAGULU VILLAGE KAZARGOD DISTRICT - 674 113(A9).

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BIJI PETER, AGED 37 YEARS

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S/O. T.D.PETER, THARAKAN HOUSE, KOTTAPADI GURUVAYOOR - 624 017 (A 10)

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AZEEZ, AGED 49 YEARS

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S/O. IBRAHIM KUTTY, THAVAKKAL MANZIL, CHEMMATTOM VAYAL KARA, BELLA VILLAGE, HOSDURG KAZARAGOD - 674 113(A 11).

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BY SPL. PUBLIC PROSECUTOR SRI.MANILAL FOR R1

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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“C.R”

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C.T.RAVIKUMAR, J.

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Crl.R.P.No.1418 of 2012 ---------------------------Dated 28^th June, 2012

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ORDER

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This revision petition carries a challenge against the order dated 5.6.2012 passed under section 216 of the Code of Criminal Procedure whereby Annexure-1 charge in S.C.No.512 of 2010 on the file of the Court of the Principal Assistant Sessions Judge, Ernakulam was altered. The revision petitioner is the fourth accused therein. The petitioner along with 10 other accused admittedly charged originally as per Annexure-1 for having committed offences punishable under sections 109, 115, 216A, 354, 384, 395 and 412 read with section 120B of the Indian Penal Code. The said charge was framed against them on 25.6.2011. Thereafter the parties went to the trial. Upon closing the evidence of the prosecution the accused were questioned under section 313 Cr.P.C. After closing the defence evidence hearing was conducted. Thereupon, Annexure-2 petition for amending the charge was filed by the prosecution. After hearing both sides, as per Annexure-3, that application was allowed and Annexure-1 charge was altered by exercising the power under section 216 of the Code of Criminal Procedure. It is this alteration of charge that is under challenge in this revision petition.

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Crl.R.P.No.1418/2012

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It is proper and profitable to refer to the relevant amendments sought for and also the altered charge which is now to be treated as the original charge. Paragraphs 2 and 3 of Annexure-2 contain the amendment sought for by the prosecution. They read thus:-

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“2. In respect of description of charge Under Section 384 it may be added that “all the accused persons (A1-A4) in furtherance of criminal conspiracy after putting PW1 and PW2 in fear of instant death and instant hurt by showing the knife and pointing the gun and induced PW1 to deliver his gold ornament namely gold rings and thereby instrumental in PW1 to deliver the gold ornaments as above stated and thereby committed the offences punishable under Section 384”.

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With respect to the portion where charge under Section 395 had been alleged the following shall also be added.

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“that the accused Nos.1 to 9 in furtherance of their conspiracy had put PW1 and PW2 in fear of instant death and instant hurt by putting in fear with a gun and knife and thereafter took forcibly from his person gold chains as well as his mobile phone and 24,000 rupees from the pocket of his shirt and thereby committed the offence under Section 395 of IPC.”

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After hearing both sides the trial court altered the charge by exercising the power under section 216 of Cr.P.C. against the revision petitioner

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and the other accused persons. Admittedly, the alterations have been made only in charge Nos.3, 6 and 7 and they read thus:-

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“Thirdly ...... at link lakshman apartment... “ Took forcibly from the person of CW1 his gold ornaments including gold chain, gold ring and bracelet and mobile phone and Rs.24,000/- from the pocket of his shirt and a mobile phone from the possession of CW2 and in order to and in committing the above said acts and in carrying away the said things, caused hurt to CW1 by Ahif by slapping at his face and you put CW1 and CW2 in fear of instant death and/or instant hurt and/or wrongful restraint by putting in fear with a gun and knife and thereby ” ...... taking nude photos ....

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Sixthly...... agreed to give money and cheque ... “ after putting CW1 and CW2 in fear of instant death and instant hurt by showing the knife and pointing the gun and induced CW1 to deliver his gold ornaments including gold chain gold ring and bracelet and mobile phone and Rs.24,000/- and thereby instrumental in CW1 to deliver the above said things as above stated and that you ” ..... thereby by committed offence U/s.384.

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Seventhly ..... that you A6 to A9 “ that you after putting CW1 and CW2 in fear of instant death and instant hurt by showing the knife and pointing the gun and induced CW1 to deliver his gold ornaments including gold chain gold ring and bracelet and mobile phone and Rs.24,000/- and thereby instrumental in CW1 to deliver the above said things as above stated ” and ..... thereby committed offence U/s.384....”

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Before considering the rival contentions on the issue it is

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worthwhile to look into the scope and application of section 216 of Cr.P.C.

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Its bare perusal would make it abundantly clear that addition or alteration of charge can be made by a court at any time before judgment is pronounced subject, of course, to the limitations on amendment. So also, there can be no doubt with respect to the position that such alteration or addition of charge can be made either on application or upon court's own motion. According to the revision petitioner, the amendment is in the nature of an addition of a charge to the original charge and it fell beyond the permissible limitations to amendment. Per contra, the contention of the prosecution is that the amendment is only in the nature of an alteration of the charge and in fact, what was done by the trial court is only an amplification of the charges already framed which is well within the power under section 216 Cr.P.C. The words “add to” mean and can only mean addition of new charge and not mere addition of a few words or corrections. (See the decisions In re: Bommareddi Sathyanarayana Reddi (AIR 1947 Mad. 174) and Rocky Benedick v. State of Sikkim (2003 (3) Crimes 452).

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Apropos the scope and application as also the discretion conferred a short survey on the authorities will be beneficial. To quote Lord Porter from the Privy Council decision in Thakur Shah v. Emperor

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(AIR (30) 1943 Privy Council 192) “alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred.” Going by the decision in Hassanbhai Valibhai Qureshi v. State of Gujarat and others ( AIR 2004 SC 2078 ), the

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Hon'ble Apex Court held that if during trial the trial court on a consideration of broad probabilities of the case based upon the total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so subject to the limitation to amendment. Going by the decision of the Hon'ble Apex Court in Kantilal Chandulal Mehta v. State of Maharashtra and another ( AIR 1970 SC 359 ) section 216 of Cr.P.C. gives ample power to the Courts to alter or add a charge provided the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving him a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him. The court below in the impugned order relied on the decisions in Pradeepan v. State of

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Kerala ( 1993 (2) KLT 880 ), Akbar v. State of Kerala and others

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( 2010(1) KLT 714 ) and Enumula Subbarao and others v. The State

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( 1979 Crl.L.J. 258 ) while considering the maintainability of Annexure-2

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petition for amendment. In Pradeepan's case (supra) it was held:-

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“A reading of Ss.216 and 217 shows that power of the court to alter or add to any charge is uninhibited and untrammelled by any time or stage of the trial. The legislative intention is evidently to invest the court with all comprehensive power for remedying the defects in a charge whether they arose while framing the charge or due to non-framing of charge, whether the defects were discovered at the inception of the trial or at any subsequent stage of it. No limitation has been imposed on the Court's power and no stage has been set as final for correcting such charge. The words “at any time” in sec.216(1) are intended to carry the message that there is no limitation even regarding the time or stage.”

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In Akbar's case (supra) this Court held thus:-

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“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.”

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The High Court of Andhra Pradesh in Enumula Subbarao's case (supra)

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considered the combined effect of Sections 226 and 227 of Cr.P.C., as well while considering the application of section 216 Cr.P.C. and held as follows:-

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“The combined effect of Ss.226 and 227 Cr.P.C. is to invest the Court with a comprehensive power to remedy the defects in framing or non-framing of the charge whether discovered at the inception of a trial or at any subsequent stage prior to judgment.

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Thus, the application of Section 216(1) Cr.P.C. cannot be limited for altering or amending a charge only to an offence disclosed by the evidence during trial. On the other hand, even if there is an omission to frame a proper charge at the commencement of the trial which omission is discovered subsequently, the same can be remedied by framing appropriate charge at any time before judgment is pronounced.”

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To ensure a fair trial, the court has to see that the addition or alteration of charge must be based on some evidence on record. If the addition or alteration of charge is made in respect of an offence provable by evidence taken by the trial court then necessarily the concerned accused can complain of prejudice on refusal of permission to recall a witness or to adduce further evidence. It is apposite to state at this juncture that if at any time before the judgment the trial court finds that the charge is defective, it is the bounden duty of the court to alter or add the charge

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subject to the limitations to amendment without relying on section 464 that applies to the appellate and revisional courts. The salutary maxim ` Actus curiae neminem gravabit ' means “an act of the court shall prejudice no man” is also to be borne in mind, while considering the rival contentions in this case. In short, a reading of section 216 Cr.P.C. and the dicta laid down in the aforesaid decisions leaves no room for any doubt with respect to power as also duty, of the court to alter or add charge, be it for correcting it or on satisfaction of the broad probabilities of the case based upon the total effect of the evidence and documents produced, at any time before the judgment is pronounced.

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The learned Special Public Prosecutor contended that in fact, the revision petition itself is not maintainable in terms of the provisions under sub-section (3) of section 397 Cr.P.C. that creates a legal embargo on entertaining a further application by a party who moved an earlier application to the Sessions Judge. Going by subsection (3) if an application under section 397 Cr.P.C. has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. The said submission of the learned Special Public Prosecutor is

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founded on the fact that the revision petitioner herein had made an application to the Sessions Judge on the same issue as Crl.R.P.No.68 of 2012. By the time it was taken up for consideration the trial court had read over the amended charge and explained it to the accused persons. In the said circumstances, the aforesaid revision petition moved before the Sessions Court was sought to be withdrawn by the revision petitioner herein stating that it had become infructuous. Admittedly, based on such a submission of the revision petitioner herein that revision petition filed before the Sessions Court was dismissed as withdrawn. This fact is evident from paragraph 5 of the revision petition. The learned Special Public Prosecutor contends that the order passed by the Sessions Court, Ernakulam in Crl.R.P.No.68 of 2012 would act as a bar in terms of the provisions under section 397(3) Cr.P.C. and therefore, this Court cannot entertain this revision petition in terms of the legal inhibition thereunder for entertaining a further application. The learned counsel for the revision petitioner submitted that since the order passed by the Sessions Court is only an order recording the withdrawal as not pressed, based on the submissions made by the revision petitioner, it cannot act as a bar for entertaining this revision petition by this Court as contended by the learned Special Public Prosecutor. In the context of the rival contentions

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a close scrutiny of section 397(3) Cr.P.C. and the decisions apropos are inevitable. The legislative changes made in the new Code conferring concurrent jurisdiction on the Court of Sessions and the High Court making of a revision before the Court of Sessions would bar entertainment of a second revision by the same person in the High Court and vice versa. In fact, it is the availing of the remedy of revision before either court viz., the Court of Sessions or the High Court that bars the second revision to the other court. In this case admittedly, the revision petitioner herein had availed the remedy of revision before the Court of Sessions against Annexure-3 by filing Crl.R.P.No.68 of 2012 and thereafter, submitted before the Court that on account of the reading and explaining of the altered charge it had become infructuous and consequently the same was withdrawn as not pressed. The Hon'ble Apex Court in the decision in Union of India v. Narendra Singh reported in ( (2005) 6 SCC 106 ) considered the meaning of the word infructuous' and held it to mean ineffective', unproductive and unfruitful. The word made' with reference to an application before a court, according to me, must mean prosecuted' viz., pursued in order to accomplish. Permission cannot be granted to withdraw a revision petition with liberty to file fresh revision petition on similar facts. Since order was passed on

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Crl.R.P.No.68 of 2012 as withdrawn as not pressed based on a submission that the matter has become infructuous the petitioner cannot be heard to contend that it is not a judicial order which would bar entertainment of a further application under section 397(3) Cr.P.C. In this case, going by the admitted facts, it is evident that the revision petitioner had applied to the Sessions Judge under section 397(1) Cr.P.C. and a decision was taken on the said revision petition. It is not the manner or the nature of the decision that bars entertainment of a second revision by the other Court but, the making of the application and a decision thereon. I have no doubt in the circumstances, filing of Cr.R.P.No.68 of 2012 and the order thereon ousts the revisional jurisdiction of this Court. The learned counsel for the petitioner submitted that the bar under section 397(3) Cr.P.C. shall not be permitted to operate to prevent the miscarriage of justice and the attempt to secure the ends of justice. The learned counsel contended that in the case on hand the amendment of charge was made at the final stage of the case without any evidence to support the amended charge that too, without following the procedure established by law to the serious prejudice of the accused. Therefore, this petition shall not be abruptly terminated without examining the attribution of illegality and impropriety that

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resulted in serious prejudice to the accused. The learned counsel contended further that as per the order altering the charge the lacuna in prosecution case was allowed to be filled in to the serious prejudice of the accused by following illegal and improper procedure and therefore, the interference of this Court is called for to prevent the miscarriage of justice and/or to secure the ends of justice. Earl Jowit, Lord Chancellor of England (1945-51) , had summarised the duties of the counsel for the defence thus:-

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“So far as the counsel for the defence is concerned, it is a truism to say that his duty is to endeavour by every legitimate means to secure his client's acquittal.”

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I am of the considered view that the attempt on the part

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of the learned counsel for the revision petitioner cannot, in the circumstances, be construed as an attempt to circumvent the bar under section 397(3) Cr.P.C. The High Court is not precluded from treating a petition filed under section 397 as a petition under section 482 and to grant necessary relief, if it is necessary for the purpose of securing the ends of justice. In the decision in Raj Kapoor and others v. State (Delhi Administration) reported in AIR 1980 SC 258 the Hon'ble

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Apex Court held that the inherent power does not stand repelled when the revisional power under section 397 overlaps. In the decision in Madhu Limaye v. State of Maharashtra ( AIR 1978 SC 47 ) the Hon'ble Apex Court held that the label of the petition is immaterial and on a petition filed under sections 397 and 401 of the Code the inherent jurisdiction of the High Court under section 482 could also be invoked. A Full Bench of the High Court of Andhra Pradesh held in the decision In re, Puritipati Jagga Reddy reported in AIR 1979 AP 146 that though a party who is unsuccessful in revision before the Sessions Judge is precluded from filing a second revision in the High Court by virtue of section 397(3) Cr.P.C. the High Court can, however, exercise its inherent power where that exercise is warranted, irrespective of the manner in which the matter has been brought to its notice. In view of the said position of law emerging from the aforesaid decisions I am inclined to consider the contentions raised by the revision petitioner. I am also of the view that the contention of the learned Special Public Prosecutor that the framing of charge or alteration of charge is revisable and the contra contentions raised by the learned counsel for the revision petitioner call for no consideration, in the circumstances.

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I have already adverted to the alteration sought for by

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the prosecution. It would reveal that alteration was sought for in the charge in respect of the offences under sections 384 and 395 of the Indian Penal Code. It is an incontrovertible position that on account of passing of Annexure-3 no new charge has been made. The learned counsel for the petitioner would also admit the fact that alteration of charge was made only in respect of offences under sections 384 and 395 Cr.P.C. The court below in the impugned order held that amplification of the existing charge regarding dacoity, i.e, by adding the details regarding the manner in which it was committed and also about the properties robbed by the accused is to be made to avoid the miscarriage of justice, by exercising the power under section 216 Cr.P.C. True that there is no such expression `amplify the existing charge' has been employed under section 216 Cr.P.C. However, a scanning of the original charge and the amended charge would reveal what was done by the trial court is only a proper re-framing of the charge taking into account the evidence taken by the trial court which is nothing but an alteration of the charge. Above all, it is obvious from the impugned order itself that, in effect, what was done is only setting right of the omission to frame a proper charge, on being brought to its notice. The learned counsel for

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the petitioner contended that there is absolute absence of any material or evidence warranting alteration of the charge originally framed and in fact, on account of the said alteration prejudice has been caused to the accused. The learned Special Public Prosecutor on the other hand contended that the said contention is bereft of any basis. The learned Special Public Prosecutor drew my attention through Annexure 3 order dated 5.6.2012 passed by the trial court in Crl.M.P.No.46 of 2012. The trial court found that the original charge itself contained accusation of dacoity against the accused. In that context, the learned Special Prosecutor relied on Section 390 of IPC. Going by section 390 IPC in all robbery there is either theft or extortion. Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Section 391 IPC defines dacoity. It reads thus:-

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“When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting

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to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity.”

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Relying on the definitions under sections 390 and 391 of IPC the learned Special Public Prosecutor submitted that the charge originally framed against the revision petitioner and the other accused would reveal that they were originally charged for dacoity and extortion of property or valuable property from CW1, the thanthri of Sabarimala Temple on his visit of CW2 in 4-C flat in Link Lakshman apartments at Valanjambalam in Ernakulam. In the context of the rival contentions I may, firstly, refer to charge Nos.1, 6 and 7 under Annexure-1 which read thus:-

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“Firstly, that you, A1 to A4 between 19/7/2006 and 23/7/2006 (both days inclusive) at various places in Kerala, directly and over mobile phone, agreed to do or caused to be done an illegal act to wit, dacoity and extortion of property or valuable security from CW1, the thantri of Sabarimala temple, who visits CW2 in 4-C flat in Link Lakshman apartments at Valanchambalam in Ernakulam, by illegal means, to wit taking nude photographs of CW1 and CW2 by using criminal force and threatening to publish the same concerning CWs 1 and 2, unless CW1 gives them money/property/valuable security and that some acts

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viz., dacoity and outraging the modesty of a woman (CW2) and putting CW1 in fear of injury in order to commit extortion were done in pursuance of the agreement and thereby committed an offence punishable under section 120-B of the Indian Penal Code and within the cognizance of this Court.

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Sixthly, that you, A1 to A4 on or about the 23^rd day of July 2006 at 7.15 PM at Valanjambalam in 4-C Flat in Link Lakshman Apartments, abetted the commission of the offence, of the extortion by A6 to A9 and Ashif by intentionally putting CW1, the Thanthri of Sabarimala Temple in fear of certain injury to wit publishing nude photos concerning CWs 1 and 2 and thereby dishonestly induced the said CW1 to deliver to you Rs.30 Lakhs or valuable security and apprehending trouble CW1 agreed to give money or cheque and that you thereby committed an offence punishable under section 384 r/w.109 of the Indian Penal Code OR in the alternate the charge is made that you A1 to A4 hatched conspiracy for the above and thereby committed an offence which is punishable under section 384 r/w 120-B IPC, and within the cognizance of this Court.

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Seventhly, that you A6 to A9 along with another accused by name Ashif on or about the 23^rd day of July 2006 at 7.15PM in pursuance of criminal conspiracy and at the instigation and with the aid of A1 to A4 and in furtherance of your common intention committed extortion by intentionally putting CW1, the Thanthri of Sabarimala Temple in fear of certain injury to wit, publishing nude photos concerning CW1 and CW2 and

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thereby dishonestly induced CW1 to deliver to A1 to A4 Rupees 30 Lakhs or valuable security and apprehending trouble CW1 agreed to give money or cheque, and that you thereby committed an offence punishable under section 384 r/w.34 of Indian Penal Code and within the cognizance of this Court.”

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In paragraph 13 of the impugned Annexure-3 order, the court below specifically stated thus:-

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“It is true that in the final report there is a mention regarding the properties robbed and the manner in which dacoity was committed.

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This specific statement in Annexure-3 order has not been specifically disputed by the revision petitioner. When that be so, it can only be taken that with respect to the properties robbed off as also the manner in which dacoity was committed the final report laid in the case carried specific reference. In the circumstances, sections 226 and 227 Cr.P.C also assume relevance. Section 227 makes it mandatory to consider the records of the case before framing of the charge for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. It is thereafter that the charge was framed. Framing of

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charge is not an empty formality. Improper framing of charges would defeat the ends of justice. It is, therefore, the duty of the court to reframe the charge properly, subject to the provisions under section 216 Cr.P.C. When the details of properties robbed and the manner in which the accused had committed dacoity were mentioned in the final report a proper framing of the charge should have taken in such details of properties robbed and the manner in which the accused have committed dacoity, as part of the charge. When admittedly, they were in the final report the failure to set out them in the charge framed against the accused can only be considered as an inadequate or inappropriate framing of charge. It is also relevant in this context that the revision petitioner has not specifically disputed the specific statement in the impugned order that both CW1 and CW2 who were examined respectively as PW1 and PW2 had adduced evidence on the aforesaid aspects and they were cross-examined on those aspects at length on behalf of the accused. That apart, admittedly, the accused was questioned under section 313 Cr.P.C. in this regard. In such circumstances, the re-framing of the charges by the court below based on Annexure-2 application, in terms of the order in Annexure-3 cannot be said to be faulty, illegal or improper causing prejudice to the accused.

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The above extracted alterations and originally framed charges would undoubtedly reveal that what was done as per Annexure-3 is only an alteration of the charges. The accused in the said circumstances cannot have a case that he was kept in the dark about the charge or has to face a charge for a new offence. Now, I may look into the question what should have been the course to be adopted after alteration of the charge as aforesaid. The learned counsel for the revision petitioner could not bring to my attention anything which would bring out illegality in the procedures followed by the trial court for amending the charge by making alterations to the charge already framed. There can be no doubt with respect to the position that once a charge is altered or added, that altered or added charge shall be treated as the original charge. Obviously, after altering a charge that was treated as the original charge and the court proceeded with further. An appreciation of evidence at this stage by this Court in this proceedings, is impermissible in law. A perusal of Annexure-3 order dated 5.6.2012 would reveal that the charge was altered based also on the evidence taken by the trial court. If at all, the evidence or materials are insufficient to attract the offence or to attach criminal liability on him that is a matter to be taken at the appropriate stage by the accused. Certainly, the revision petitioner

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Crl.R.P.No.1418/2012

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cannot be permitted to canvass such points in this proceedings. The impugned order itself would reveal that after amending the charge the altered charge was read over and explained to the accused and the court had also specifically entered into a finding that the said amendment do not warrant a new trial. The impugned order would further reveal that after the amendment of the charge it was specifically ordered thereunder that the prosecutor and the defence shall have every right to request the court to recall and permit them to examine any of the witnesses already examined and they would also be entitled to adduce any further evidence. By virtue of section 217 Cr.P.C. and also in the light of the decision of the Hon'ble Apex Court reported in Ranbir Yadav v. State of Bihar ( AIR 1995 SC 1219) such opportunities have to be afforded to the prosecution and also to the defence to safeguard their interest whenever the charge is altered. Evidently, that exactly was ordered and afforded on amending the charge. The learned counsel for the revision petitioner admitted that though such an opportunity was made available the accused admittedly has endorsed that he did not propose either to recall any of the witnesses and to adduce any further evidence. Having made such an endorsement despite the specific order, as mentioned above, the revision petitioner cannot be permitted to turn around and

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¶146

raise grievances of prejudice. The ultimate test that emerges through an interpretation of the relevant provisions and the case laws to find the element of prejudice is whether the complexion of the charges were altered and if so, whether the accused was afforded with a full opportunity of meeting the altered charge. In this case, evidently, the complexion of the charges remained unaltered and further more, opportunity to recall any of the witnesses already examined and to adduce any further evidence was afforded. After giving an endorsement to the effect that the revision petitioner did not propose to recall any of the witnesses already examined and also to adduce any further evidence, after Annexure-3 order for altering the charge the petitioner is not justified in complaining of prejudice, whatever be the reason for making such a decision. For all these reasons, I do not find any substance in the contention of the revision petitioner that alteration of charge which, in this case, essentially one of re-framing of the charge was illegal or improper and the failure to follow procedures established by law has caused prejudice warranting interference by this Court.

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The upshot of the discussion is that this revision petition lacks merit and therefore, it is liable to fail. Accordingly, it is dismissed.

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Crl.R.P.No.1418/2012

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¶150

It is made clear that the observations and discussions are made hereinbefore, only for the purpose of deciding this case and the same shall not be considered as observations made with reference to the evidence adduced in S.C.No.512 of 2010 on the file of the court of the Principal Assistant Sessions Judge, Ernakulam.

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TKS

¶152

The 4^th sentence in paragraph 7 of the order dated 28/06/2012 in Crl.R.P.No.1418/2012 is suo motu corrected and substituted as “The learned counsel for the petitioner would also admit the fact that alteration of charge was made only in respect of offences under sections 384 and 395 IPC” as per order dated 20/072012 in Crl.R.P.No.1418/2012.

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Sd/Registrar (Judicial)

Abdul Rahiman v. State of Kerala

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Abdul Rahiman v. State of Kerala

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