Dharmendra Gaur vs State of MP and Others

Sujoy Paul, J—This revision filed under Section 397/401 of Cr.P.C. assails the order dated 9.3.2015 whereby the court below has allowed the application of respondent No. 2 preferred under Section 216 of Cr.P.C. and added Section 302 as a charge against the petitioner/accused.

This matter has a chequered history. The parties have fought a long drawn battle in the corridors of the Court.

In short, the relevant facts are that a FIR was registered by the investigating officer on 12.8.2011 for offence under Section 306/34 IPC. On 9.9.2011 the challan was filed under Section 306/34 IPC.

Shri Ankur Maheshwari, learned counsel for the petitioner by taking this Court to the charges framed by the Court dated 23.1.2012 submits that it was initially filed for offence punishable under Section 306/34 IPC. The complainant Mukesh Shivhare lateron filed a private complaint under Section 200 Cr.P.C. mentioning that the offence under Section 302 IPC be registered against the present petitioner. The petitioner filed M.Cr.C.No. 8368/12 before this Court challenging the said private complaint. The said M.Cr.C. was decided on 19.11.2012 and complaint proceedings were set aside. The State Government and complainant Mukesh Shivhare filed two separate S.L. Ps. Those S.L. Ps. were dismissed by Annexure P-5 (filed cumulatively). Shri Maheshwari submits that in the SLP filed by the complainant, the liberty was given to him by the Apex Court to seek alteration of charge at the appropriate stage.

M.Cr.C.No.3085/12 was also filed by the complainant. This Court by order dated 2.5.2012 directed that the complainant is free to file an application under Section 216 of Cr.P.C. This Court observed that the court below after affording opportunity of hearing to all the parties concerned, shall decide the said application. Shri Maheshwari submits that on the basis of challan papers, charges were framed on 23.1.2012. Thereafter, there was no change in circumstances. No evidence is led. On the basis of material already available on record, the trial Court on 23.1.2012 framed the charges. In absence of any change in circumstances it was not open to the trial Court to re-drop or re-frame the charges. It was not permissible to add Section 302 IPC in the charge. Reliance is placed on Pritam Prasad Vs. Lakhan Singh and Others, (2007) 3 MPHT 546 : (2008) 4 MPLJ 94 . To elaborate, Shri Maheshwari submits that as per this judgment, it is clear that adding of Section 302 without there being any further material amounts to reviewing the earlier order which is not permissible. He has also relied on C.B.I. Vs. Karimullah Osan Khan, AIR 2014 SC 2234 : (2014) AIRSCW 1702 : (2014) CriLJ 1870 : (2014) 7 JT 259 : (2014) 2 RCR(Criminal) 123 : (2014) 3 SCALE 335 .

Learned counsel for the petitioner submits that even as per the material available on record, the charges under Section 302 IPC are not made out. He relied on the medical report (page 29). By criticizing the impugned order, it is submitted that court below has gone deep into the evidence which is totally impermissible at the stage of deciding an application filed under Section 216 Cr.P.C. Shri Ankur Maheshwari has placed heavy reliance on a recent judgment of this Court reported in Pappu Khare Vs. State of M.P.(2015) 2 MPHT 271 to contend that necessary ingredients for attracting offence under Section 306 are not available in the present case. He submits that there is a glaring similarity in the present case with that of decided by the co-ordiante bench in Pappu Khare (supra). He submits that the only difference in both the cases is that in the other matter the deceased was wife, whereas in the present case it is husband. It is further alleged that no ingredient of culpable homicide are available in the material on record and therefore, court below has grossly erred in adding charge under Section 302 IPC. By placing reliance on the observation of Supreme Court in the SLP filed by complainant, it is contended that the Apex Court consciously added the words "at appropriate stage". The present stage, by no stretch of imagination, can be said to be appropriate stage. After recording evidence, if fresh/new material emerges, that application could have been filed. However, the said application was filed when the material remained the same.

Shri Atul Gupta, learned counsel for the complainant submits that Rakesh died on 5.8.2011. He submits that the statement of complainant and the wife of the deceased, who herself is an accused in the matter is sufficient to make out a prima facie case for invoking Section 302 and 306 of IPC. It is submitted that reliance of medical report is misconceived. The report in no uncertain terms makes it clear that as per doctors opinion the death is as a result of hanging, but report further shows that there are certain injuries found on the body of deceased. Thereafter, police authorities, by communication dated 11.8.2011, asked the doctor to clarify certain aspect. In turn, the doctor answered the query of police authorities by opining that, 1) the lacerated mark on the neck of the deceased may be because of rope and it cannot be by "sari". 2) The abrasions found on the body of deceased were of the period when she was alive. 3) The injury found on the body are sufficient to cause death.

On the strength of this report, it is contended that sufficient material is available to make out a case for framing charge. Reliance is placed on the statement of Rajni and Mukesh Shivhare.

State of Madhya Pradesh Vs. Sheetla Sahai and Others, (2009) CriLJ 4436 : (2009) 10 JT 388 : (2009) 10 SCALE 632 : (2009) 8 SCC 617 : (2009) 13 SCR 1048 : (2009) AIRSCW 5514 and Soma Chakravarty Vs. State through CBI, AIR 2007 SC 2149 : (2007) CriLJ 3257 : (2007) 7 JT 181 : (2007) 7 SCALE 25 : (2007) 5 SCC 403 : (2007) 6 SCR 324 : (2007) 2 UJ 696 : (2007) AIRSCW 3683 : (2007) 4 Supreme 280 . It is urged that the material for the purpose of framing charge and the evidence for the purpose of conviction are totally different. The parameters/ingredients for framing charge are totally different than the nature of evidence necessary to hold a person guilty. It is submitted that at present sufficient material was available and court below has not committed any legal error in framing the charge. It is further submitted that on 23.1.2012 charge under section 306 and 34 were framed. The petitioner did not challenge it at any point of time. Under the garb of challenging the impugned order dated 9.3.2015 the petitioner cannot be permitted to assail the charge under Section 306 and 34 of IPC.

Shri R.P. Gupta, learned Government counsel almost borrowed the same arguments which were advanced by Shri Atul Gupta. He submits that a cumulative reading of statements of the complainant Rajni and her daughter makes it clear that sufficient material was available before the court below on the basis of which impugned order is passed. There is no legal infirmity in the impugned order which warrants interference in the revisional jurisdiction of this court. Thus, it is prayed that the petition be dismissed.

No other point is pressed by learned counsel for the parties.

I have heard the learned counsel for the parties at length and perused the record.

The aforesaid chain of events shows that the petitioner filed Misc. Cri. Case No. 8386/2012, in which he challenged the complaint filed by the complainant. The main ground to challenge the complaint proceedings was that the petitioner has already been made accused and facing trial under Section 306/34 IPC. He cannot be made to face another proceeding pursuant to the complaint preferred by respondent No. 2. This Court allowed his Misc.Cri.Case, which was affirmed by Supreme Court. It was open to the petitioner to assail the first proceeding or the charge initially made against him under section 306/34 IPC. He did not challenge it at any point of time. Now by challenging the order dated 9.3.2015, it is contended that no foundation is there for framing charge under section 306/34 IPC.

The impugned order, in my view, is only a decision on an application preferred under section 216 CrPC. By this order, a new charge under section 302 IPC is directed to be added. Thus, by challenging this order, no challenge is made to the charge made under section 306/34 PC. In this petition, said charge cannot be called in question. Thus, the judgment of Pappu Khare (supra) pales into insignificance. In other words, the said judgment which deals with offence under section 306 IPC has no relevance to decide the validity of impugned order whereby charge under section 302 IPC is directed to be added.

This is settled in law that powers under section 216 CrPC are very wide. At any stage of trial, the court can alter or add any charge. See, C.B.I. Vs. Karimullah Osan Khan, AIR 2014 SC 2234 : (2014) AIRSCW 1702 : (2014) CriLJ 1870 : (2014) 7 JT 259 : (2014) 2 RCR(Criminal) 123 : (2014) 3 SCALE 335 .

In Soma Chakravarty (supra), the Apex Court held that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charge the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.

In Sheetla Sahai (supra), the Apex Court opined that there cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence.

As per the said legal position, it is clear that if material on record is sufficient, the court can at any stage frame, add or alter the charge. This can be done on an application or suo motu by the Court. In view of the judgment of Karimullah Osan Khan (supra), I am unable to hold that if any charge is altered, modified or added, it will amount to reviewing the earlier order. In view of the judgment of Supreme Court, the judgment of this Court in Pritam Prasad (supra) is of no help to the petitioner.

In view of the medical report, statement of witnesses recorded under Section 161 CrPC, reply of doctor in relation to query of police authorities, etc., I am unable to hold that the court below has passed the order without application of mind. On the contrary, the court below has considered various points and opined that charge under section 302 IPC needs to be added. The relevant points considered by the court below are as under:-

As per aforementioned discussion, in my view, the court has not committed any legal infirmity, which warrants interference by this Court in revisional jurisdiction. Hence, this revision petition is not entertained. However, it is made clear that this Court has not expressed any view on merits of the case.

Revision is dismissed. No cost.