Ahad Bhat and Ors. vs State

(1) On April 6, 1974 Rehman Bhat lodged a report at the police post CharariSharif alleging therein that while he was cultivating his field comprised

in Khasra No 217 situated at Karapora which he had duly purchased in 1973, Ahad Bhat and five ors came there in a body trespassed into his

field, overwhelmed and beat him with Dandas and Ahad Bhat assaulted his brother Khalil Bhat with a ""Leven"" on account of which tha latter

became unconscious and fell down, The informant further alleged that if Abdul Kabir Wani son of Ahmed, Abdul Ganai Mir son of Abdul Rahim

Mir, and Mohamad Akram Meet son of Ahmed' residents of Karapora had not arrived at the spot in time and rescued him and his brother from

the clutches of the accused they would have been to death. On receipt of this report a case under Section 147/148 R. P. C. was registered by the

Police Station. Pulwama, and investigation started which resulted in the challan of the accused under Sections 302, 148, 457/149 R. P. C. in the

court of the Munsiff Judicial Magistrate 1st Class, Pulwama

The case was still at the investigation stage when Khalil Bhat succumed to his injuries on April 11, 1974, in the S. M. H. S. Hospital Srinagar

where he bad been removed from CharariSharif dispensary and admitted as an indoor patient. Dr, Ghulam Nabi who conducted the post mortem

examination of the body of Khalil Bhat opined that the cause of the death of the latter was subdural haemorrhage caused by the injury on the scalp

leading to the formation of massive subdural haemorrhage. After recording the evidence adduced by the prosecution and examining the accused

the learned Munsiff Magistrate took upon himself the onerous task of determining whether the accused were prima facie guilty of the offence of

culpable homicide amounting to murder under Section 302 R P, C. read with Section 149 R P C. or of the offence under Section 304 R. P. C.

and finding that the prosecution had made out a primafacie case against the accused under Sections 304(1) 148, 447. 342 and 149 of the Penal

Code he framed charges against them under the said Section of the Penal Code and committed them for trial to the court of Session at Anantnag.

(2) At the commencement of the trial the learned Sessions Judge scrutinized the charges framed by the committing court and being of the opinion

that the main charge under section 304 Part I of the Ranbir Penal Code framed against the accused by the Committing Magistrate required to be

rectified, altered the same to one under section 302 of the Penal Code vide his order dated Dtc. 27 1974. Aggrieved by this order, the accused

made an application on the revisional side of this court which came up before my learned brother, Mufti BahaudDin Farooqi J. At the hearing of

the application it was contended before the learned Judge on behalf of the accused that the learned Sessions Judge was not competent to alter the

charge framed by the Committing Court. It was also stated before the learned Judge by the learned counsel for the parties that there was no

decision of the Supreme Court directly bearing on the matter and the only authorities on the point were two decisions of the Allahabad High Court.

Thinking that the question raised was of considerable importance and required an authoritative decision the learned Judge directed the papers to be

Laid before me for constituting a larger bench. This is how the case is before us

(}) Relying on an over ruled decision of Single Judge of the Gujrat High Court in Kantilal Keshewlal Shab V. Prabodhchandra Panachand of

Ahmedabad and ors, 1964 (2) Criminal Law Journal, 87, Mr. T. Hussain, learned counsel for the accused, has urged, as he did before the learned

Single Judge, that the learned Sessions Judge was not competent to alter the charge. Elaborating his contention the learned counsel for the accused

has submitted that since under Section 207A (7) Cr. P. C if a magistrate is of the opinion that the accused should be committed for trial he has to

frame a charge under his hand, declaring with what offence the accused is charged and under Section 271 Cr. P. C. it is that charge that has to be

read and explained to the accused at the commencement of the proceedings in Sessions Court and the accused has to be asked whether he pleads

guilty to the charge or notice the learned Session Judge could not alter the charge framed by the Committing Court. He has further urged that when

a person has been committed to the Sessions Court for trial for a particular offence, the Sessions Court has to try him for that offence and it is not

open to the court to quash the charge directly or indirectly by framing a fresh charge for a different offence.

(4) This contention of the learned counsel is our opinion, is misconceived and cannot be allowed to prevail. It overlooks the provisions of Sections

226 and 227 of the Code of Criminal Procedure which provide :

Procedure on commitment without charge or with imperfect chargeWhen any person is committed for trial without a charge, or with an

imperfect or erroneous charge, the court may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules

contained in this Code as to the form of charges.

Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgement is pronounced, or in the case of trials (by

jury) before the court of Session or High Court, before the verdict of the Jury is returned.

(2) Every such alteration or addition shall he read and explained to the accused.

The first Section Viz Section 226 which is by way of exception to sections 193 (1) and 194 of the Code of Criminal Procedure contemplates three

situations in which a charge can be framed and amended by the Sessions Judge or the High Court, as the case raperson is committed for trial without a charge. 2/where a person is committed for trial with an imperfect charge and 3/where a person is committed

for trial with an erroneous charge. In the first case the Section Provides that the Sessions Court or the High Court as the case may be, may frame a

charge In the second and third case, the Section Provides that the Sessions Court or the High Court as the case may be, may add to or otherwise

alter the charge having regard to the rules contained in the Code of Criminal Procedure as to the form of charges.

(5) Section 227 permits the rectification of the charge after the commencement of and during the course of the trial.

(6) A conjoint reading of the two Section quoted above makes it clear that the Sessions Court is invested with power not only to frame a charge

where none has been framed by the committing court but also empowers the court to add to the charge or to correct any error in the charge. The

purpose of enacting the said Sections seems to have been to invest the Sessions Court with full power of rectification and remedying every kind of

defect in the charge. We are fortified in this view by a catena of authorities. In Hassenullah Sheikh V. Emperor, AIR 1924 Calcutta, 625 where the

accused were committed for trial for the murder of one Maulvi MahjazulHug and for hurt caused to one Qarim Ullah by one of the accused and

the Sessions Judge added a charge for the murder of Qarim Ullah, it was held that he had power to do so.

(7) In reSubbaratnam and ors, A. I. R. 1949 Madras, 663, it was held that a trial judge at sessions is not bound by the charges framed by the

Committing Court and he has ample power 'to revise and alter them not only at the commencement of the trial under Section 226 Cr. P. C. but

under Section 227 Cr. P. C even after commencement of the trial at any stage before the verdict of the jury is returned.

(8) In Pandaran Mani and others V. State of Kerala, AIR. 1966 Kerala, 1 (F.B) it was held as follows:

From the language of S. 193 (I) and the definition of the word ''Offence"" in S. 4 (l) (c) it seems to follow that the Prohibition in S 193 (l) is against

taking cognizance of the act or omission unless there is a commitment therefore and not against taking cognizance of a different mens rea or a

subsequent consequence of the act, punishable under a different provision of law. Hence so long as the act which is the subject matter of the trial is

also the subject matter of the commitment, the Section does not bar an alteration or addition to the charge on which the commitment is based so as

to take notice of subsequent consequence or a different mens rea making the act punishable under a different provision of the law.

(9) In State of Gujarat V. Mahmad Kasam and anr, AIR. 1967, Gujarat 169, a Division Bench of that court while overruling the earlier decision of

that court in Kantilal Keshewal Shah Vs. Prabodbchandra Panachand of Ahmedabad and ors, 1964 (2) Cr Law Journal, 87, (Supra) and stating

that it did not represent the correct law, held that heading under which a Section appears cannot be allowed to control the interpretation of the

Section and that where the meaning of the Section on pLaln natural construction is clear, such meaning should be given effect to even if the Section

occurs in a group of sections under a particular heading It was further held in that case that it is no doubt true that Section 226 occurs in the

fasciculus of Sections grouped together under the heading ''form of charges"" but the heading cannot be allowed to control the interpretation of the

Section and that Section 226 empowers the court of Sessions to add to, or otherwise alter the charge in all cases where the charge is imperfect or

erroneous. Their Lordships further held that the view that the scope of the power under section 226 is not confined merely to addition or alteration

of the charge for the purpose of bringing it to a proper form but also includes addition or alteration for the purpose of introducing a charge for a

distinct Offence other than that for which the accused was charged by the Judicial Magistrate committing the accused is reinforced by Sections 229

and 280 of the Code which clearly postulate that the altered or added charge may be for a distinct offence other than that for which the Judicial

Magistrate had committed the accused It will be useful at this stage to reproduce the following observations made by their Lordships in the said

case :

But the power to add to or otherwise alter the charge can be exercised by the Court of Session in all cases where the charge is imperfect or

erroneous. Now there is nothing in the Section which limits this power of the Court of Session to those cases only where the imperfection or error

in the charge is in regard to the form of the charge. If the charge is deficient in complying with the requirements as to form set out in the various

Sections occurring under the heading 'Form of charges', the charge would be defective or to use the language of the Section 'imperfect' but the

Legislature has also used another word, namely/ erroneous' to denote the class of cases where the power to add to or alter the charge can be

exercised by the Court of Sessions. The word 'erroneous' is not used to denote the same idea as the word' 'Imperfect'. If the charge is defective in

form, it would be imperfect, but it would not be correct to say that it is erroneous. The word 'erroneous, clearly suggests that the charge is wrong,

instead of a charge for offence A, the charge is for offence B that is the error in the charge which is contemplated by the Legislature. And this

intention of the Legislature is made sufficiently clear by illustrations 1 & 2. These two illustrations show beyond doubt that the error in the charge

referred to in the Section is merely an error in form and the power to add to or alter the charge is not confined only to cases where there is an error

in the form of the charge but extends to cases where the Sessions Judge finds on a consideration of the papers that the charge is erroneous in that it

should be not for offence A as framed by the Judicial Magistrate but for offence B or that it should be not only for offence A but also for offence

B.

At another place in the said decision, their Lordships of the Division Bench of the Gujarat High Court observed :

The principle behind the Section is that the Sessions Judge is not bound by the charge as framed by the Judicial Magistrate committing the

accused but if on the record which was before the Judicial Magistrate the Sessions Judge finds that the charge is imperfect or erroneous, he can

frame a new charge or add to the charge or alter the charge by introducing a charge in a distinct offence. It is undoubtedly true that, in a sense

alteration of the charge from one offence to another would involve in the process extinction of the charge for the old offence and framing of a

charge for the new offence but that power is expressly conferred on the Court of Session under S. 226 if the conditions set out in the Sections are

satisfied and we do not, therefore, see why we should refuse to concede such power to the Court of Session merely on the ground that the effect

of recognising such power would be to empower the Court of Session to quash the charge. The court of Session indubitably cannot quash the

charge when the accused is committed to it for trial but it can certainly frame a new charge or add to or otherwise alter the charge as provided

expressly in S. 226. This view which we are taking is fortified by the decision in 47 Bom LR 995 (AIR 1946 Bom. 183) (Supra) to which we have

already made a reference. Lokur J held in that case which was a case of committal to the High Court that on a committal on a charge against

accused No. 2 of murder under section 302 of the I. P. C. and a charge against accused Nos. 1 and 4 under Ss. 323 and 109 of the Indian Penal

Code it is competent to the Clerk of the Crown under section 226 of the Code of Criminal Procedure to alter the second charge into one under

Sections 302 and 109 of the Indian Penal Code, for aiding and abetting accused No 2 in the murder. The power to add to or alter the charge

conferred by section 226 was interpreted in this decision in the same manner in which we ere inclined to interpret it.

(9) To the same effect is the decision of the Madras High Court in re, Sekharan, AIR 1969 Madras 320, where Krishnaswami Reddy J observed

that he was unable to agree with the wide observations made by the learned Single Judge in Kantilal Keshavlal V Prabhod Chandra (Supra) that

altering a charge under section 307 I. Pt C. to one under Section 324 I. P. C would amount to quashing the earlier charge which could be done

only by High Court under Section 561 Cr. P. C and that a Sessions Judge before the commencement of the trial could not alter the charge.

(10) In Dr. A. N. Mukerji V. State. A. I. R. 1969 Allahabad, 489, a Division Bench of the Allahabad High Court held that the combined effect of

Sections 226 and 227 of the Criminal procedure Code is to invest the Sessions Judge with a comprehensive power to remedy the defects in the

framing or the non framing of the charge by the committing court whether discovered at the inception of a trial or any subsequent stage prior to

judgement, if on reading the evidence on the record of the committal court he is of the opinion that such action is called for.

(11) In Ramanand Singn and anr, Vs. State of Bihar, A. I. R. 1963 Patna, 258, also it was held that the Sessions Judge is competent to rectify any

omission in the charge framed by the Committing

Court by virtue of his powers under Section 226, of the Criminal Procedure Code.

(12) Observations made by their Lordships of the Supreme Court in Harihar Chakravarty V. The State of West Bengal, A. I. R. 1954 S. C 266,

also go to show that the trial Court can alter the charge if there are materials before it either in the compLalnt or in the evidence The first contention

of Mr. T. Hussain is, therefore, overruled.

(13) The second contention of Mr. T. Hussain. that according to Section 271 Cr. P. C. it is only the charge framed by the Committing Court that

has to be read out by the Sessions Judge at the commitment of a trial is also without substance. In (1967) 2 Andh WR 10=1967 LR (Cri) 551

(554) it was held that Section 271 in terms does not refer to the charge as framed by the committal court, and that when the charge referred to

therein is not thus circumscribed, the charge as framed, amended or altered by the Sessions Court at the inception it well within the meaning of that

provision and the trial can be duly commenced by reading out and expLalning such charge.

(14) For the fore going we have no hesitation in repelling the contentions of Mr. T. Hussain and in holding that the learned Sessions Judge was

competent to alter the charge as in his opinion there was material on the record to justify such action.

(15) In the result we find no merit in the revision application, which is hereby dissmissed.