Kantilal Keshewlal Shah vs Prabodhcnandra Panachand of Ahmedabad and Others

V.B. Raju, J.—One Lohar Babu Jakku was committed to the Session''s Court on a charge under station 307, 1. P. Code, but the leered

Sessions Judge of Kutch at Bhul framed a charge u/s 324, Indian Penal Code. To such a char go the accused pleaded guilty and there-upon he

was convicted u/s 324, I. P. Code aim sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 50/- in default rigorous

imprisonment for two months.

u/s 207A, Criminal Procedure Code, if a Magistrate is of the opinion that an accused per sort should be committed for trial, he shall frame a

charge under his hand, declaring with what offence the accused is charged. u/s 271 of the same Code, that charge has to be read out in Court and

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

guilty to the charge or claims to be tried. The proceedings before the Sessions Court, therefore, open with the charge already framed by the

committing Magistrate.

But it is open to the Sessions Judge after commincing the proceedings to alter the charge. It is provided in Section 227 of the Criminal

Procedure Code as follows:

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

Sessions or High Court, before the verdict of the jury is returned.

Every such alteration or addition shall be read and explained to the accused.

The learned Counsel for the accused relies on Section 228 of the Criminal Procedure Code which reads as follows:

When any person is committed for trial without a charge, or with am imperfect or erroneous charge, the Court, or, In the case of a High Court, the

Clerk of the State may frame a charge or add to or otherwise all term the. charge, as the case array be, having regard to the rules contained in this

Code as to the form of charges."" This section contemplates three alternatives in which a charge can be framed by the Sessions Court or the High

Court as the case may be, namely, (1) where a person 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 cases, 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.

It is contended by the learned Counsel for the accused that u/s 226, Cr.P.C. It is open to a Sessions Judge to frame a charge u/s 323 or 324, I.

P. Code, although the Magistrate has committed the accused to the Sessions Court for trial u/s 302 or Section 307, Indian Penal Code. The

contention is that the Sessions Judge can do so, if on the evidence there is no sufficient ground to commit the accused person to the Sessions Court

for trial u/s 302 or Section 307, Indian Penal Code. This contention must be rejected, the cause Section 226, ""Cri. Pro. Code, gives powers to the

Sessions Court to frame a charge only In cases where a person is committed for trial without a charge. The power of framing a charge is restricted

to such a case. In cases� Where a person Is committed to the Sessions Court for trial with an imperfect or erroneous charge; the Sessions Court

may add to or otherwise alter the charge.

But the instant case is not a case of adding to or altering the charge framed by the committing Magistrate. Section 226, Criminal Procedure

Code, deals with the form of charges. It derails with cases where there is no charge or where there is an imperfect form of charge or error in the

form of the charge. Section 226 is found in Chapter XIX of the Criminal Procedure Code, which is headed ""Form of Charges"". If, therefore, there

is an error in the charge as framed by the committing Magyar trade in regard to the form of the charge, that can be corrected by the Sessions

Court,

In any case, the sessions trial must open with the reading of a charge) as framed by the committing Magistrate. This is so provided in Section

271 of the Criminal Procedure Code. Having done so, the Sessions Judge might alter or add to the charge. In cases where an accused person is

committed to the Sessions Court for trial without a charge, it is open to him u/s 226, Criminal Procedure Code to frame a charge. But, in cases

where an accused person has been committed to the Sessions Court for trial upon a charge framed by the committing Magistrate, after reading out

and explaining the charge to the accused and taking the plea of the accused to such charge u/s 271, Cri Pro. Code, the Sessions Judge may alter

or correct the charge as provided In Section 227, Criminal Procedure Code, and Section 226, Criminal Procedure Code.

The contention that it is open to the Sessions Court before commencing the proceedings of the sessions trial to frame a fresh charge under a

different section altogether without reading out and explaining the charge as framed by the Committing Magistrate cannot be accepted. The

contention of the learned Counsel for the accused is that it is open to the Sessions Court to do so, if in his opinion the evidence dates not justify the

framing of a charge for an offence under which the committing Magistrate has framed the charge. This power of quashing a charge rests only with

the High Court and cannot be exercised by the Sessions Court u/s 225 or Section 227 of the Coda of Criminal Procedure.

When a person has teen committed to the Sessions Court for trial for a particular offence, the Sessions Court must try him for that offences, but

it is not open to the Sessions Court to quash the charge; directly or indirectly by framing a fresh charge for a different offence altogether. This is, in

fact, what the learned Sessions Judge has done. In fact, he has given no reasons for framing a charge u/s 324, Indian Penal Code, and not reading

out the charge u/s 307, Indian Penal Code, to the accused as provided in Section 227, Criminal Procedure Code. Whether he gives reasons or

not, the Sessions Judge has no. power to indirectly or directly quash the charge under which aft accused person has bean committed to the

Sessions Court for trial.

The revision application is allowed and the conviction of the accused opponent No. 1 and the serif thence passed upon him u/s 324, Indian

Penal Code, are set aside. The learned Sessions Judge is directed to retry the accused person upon the charge u/s 307 Indian Penal Code upon

which he has been committed. The Sessions Court has of corsair power to amend and alter the charge as already stated above.