Dalbir Singh vs State of Punjab and anr.

A.P. Chowdhri, J.

This revision is directed against the order of learned Additional Sessions Judge, Patiala, dated 1011990.

Briefly stated the material facts are that on a report lodged by Dalbir Singh case FIR No. 118 dated 2861985 was lodged at Police Station Kotwali, Patiala, under Section 366 of the Indian Penal Code against respondent Nos. 2 to 4. The allegations made in the report were that Amardip Kaur alias Nitu aged below 16 years, daughter of Dalbir Singh, had been kidnapped by Baldip Singh accused with the active assistance of Ravinder Kaur and Amarjit Kaur, respondent Nos. 3 and 4 on 2761985 from her house. Later Baldip Singh took Amardip Kaur to Mani Karan in the State of Himachal Pradesh where he committed rape on her. Amardip Kaur was later recovered. The police filed a challan under section 363 and 366 of the Indian Penal Code. The accused were committed and a charge under section 366 of the Indian Penal Code only was framed and the trial commenced in the Court of Additional Sessions Judge, Patiala.

An application for adding the offence under sections 363 and 376 of the Indian Penal Code was made by the prosecution. It was dismissed by the learned Additional Sessions Judge by order dated 411889. The rejection of the application was based on two grounds. It was observed that the amendment of the charge at that stage will reopen the entire case necessitating reexamination of the witnesses and thereby the prosecution will be able to fill in certain lacuna which were left in the first instance and this was likely to cause prejudice to the accused. The second ground mentioned by the learned Additional Sessions Judge was that even though the offence of rape was allegedly committed in the State of Himachal Pradesh it was in the course of the same transaction and could be tried at Patiala from where the alleged kidnaping took place. The word used in this connection in Section 220 of the Code of Criminal Procedure was may, and, not shall. To avoid prejudice to the accused and also because the offence under section 376 of the Indian Penal Code could be tried in the State of Himachal Pradesh, the Court decided to exercise its discretion against accepting the application.

A second application was made by the Additional Public Prosecutor for adding offences under sections 363 and 376 of the Indian Penal Code. It was later on withdrawn by the learned A.P.P. on 2881989. Thereafter, the first informant made a similar application. It appears that the application made by the first informant was supported by the learned A.P.P. By the impugned order the learned Additional Sessions Judge dismissed the application. Reference was made in the impugned order to the dismissal of the first application made by the prosecution which was dismissed by Shri S.S. Chahal, predecessor of the present Presiding Officer of the Court. It appears that the learned Additional Sessions Judge took the view that he could not review the order passed by his predecessor. Reference was also made to the second application made by the prosecution which was dismissed as withdrawn. On the ground of dismissal of the two applications moved by the prosecution, therefore, the present application was dismissed. An additional reason given in the impugned order is that charge had already been framed under section 366 of the Indian Penal Code which was an aggravated form of the offence under section 363 of the Indian Penal Code. No attempt was, however, made to explain any thing regarding the omission of the offence under section 376 of the Indian Penal Code.

It was stated in the grounds of revision that the petitioner wrote to the Superintendent of Police, Kulu, for registration of a case under section 376 of the Indian Penal Code. The Superintendent of Police, Kulu, vide his letter dated 661989 informed the petitioner that a case had already been registered under sections 363 and 366 of the Indian Penal Code at Patiala and the offence under section 376 of the Indian Penal Code could also be tried there and there was, therefore, no need to register a separate case at Kulu.

It is not disputed that the offence of rape which according to the prosecution case has been committed in the course of the same transaction could be tried at Patiala. This position of law was not disputed even before the learned Additional Sessions Judge when he dismissed the first application made by the prosecution by order dated 411989. Before me also the aforesaid legal position is not disputed. Reference in this connection may be made to Rampratap v. State, AIR 1970 Rajasthan 250, and Chhotey Mian v. State, 1973 Cri. LJ 908 (DB). The contention of Shri R.S. Ghai, learned counsel for the private respondents, is that the period of limitation cannot be extended by clever device of a successive application, two previous applications made by the prosecution having been dismissed by the Court. Learned counsel also argued that if the application were allowed at this stage and witnesses are reexamined they will fill in the lacuna which will result in prejudice to the accused. He also submitted that section 220 of the Code of Criminal Procedure contained only an enabling provision and it was not necessary that the offence of rape must be tried at Patiala.

The contention of Shri K.K. Aggarwal, learned counsel for the petitioner, is that a similar application had been made by the A.P.P. For the reasons which were not apparent on the record, the learned A.P. P. withdrew the second application. There was never any doubt that the offence of rape, according to the prosecution, had been committed. There was no understandable reason why the charge had not been framed in the first instance or at least at a later stage when the matter was squarely brought to the notice of the Court. Section 216 of the Code of Criminal Procedure empowers the Court to alter or add to any charge at any time before judgment is pronounced. The section itself provides safeguards to protect the legitimate interest of the accused. The paramount consideration in the trial of a criminal case is the interest of justice according to law. The powers under section 216 of the Code of Criminal. Procedure are of wide amplitude and wherever facts and circumstances of the case so require, as in the present case, the Court should not misguide itself by supposed prejudice to the accused. There is no question of prejudice to the accused in the alteration of the charge per se. The simple reason is that the Code of Criminal Procedure itself provides in express terms that the Court may alter or add to any charge at any time before judgment is pronounced. Secondly, it is always open to the accused to show at the appropriate time that the prosecution had filled in certain lacuna or had come up with certain explanation etc. as afterthought. An application for adding to the charge cannot be thrown out on the assumed ground that it would cause prejudice to the accused.

The. contention of Shri Ghai that there cannot be a fresh limitation by a successive application is altogether misconceived. Such an application can be made at any time. In the present case, the instant application was the first one made by the complainant.

For the above reasons, the revision petition is allowed and it is directed that the learned Additional Sessions Judge, Patiala, will add to the charge the offences under sections 363 and 376 of the Indian Penal Code and proceed further with the case in accordance with the provisions of Section 216 of the Code of Criminal Procedure and other provisions of law. The parties through their counsel are directed to appear in the trial Court on 4690 for further proceedings according to law.