Naveen Gupta vs State of Madhya Pradesh

B.D. Rathi, J.—Present Revision has been preferred u/s 397/401 of the Code of Criminal Procedure, 1973 against the order dated 02.01.2013 passed by the XIV Additional Sessions Judge, Gwalior in Sessions Trial No. 94/2012 whereby the application filed by the petitioner u/s 216 of Cr.P.C. has been rejected by saying that prima facie charge u/s 306 of IPC was rightly framed on the basis of factual aspect of case.

Facts necessary for just disposal of the present revision are that the marriage of Rashmi Gupta (since deceased) D/o Shri Ashok Gupta was solemnized with the petitioner in the year 1995.

According to the prosecution in the intervening night of 22-23/9/2009, Smt. Rashmi Gupta was got admitted by her husband in the hospital for treatment as she got burnt. Information was given by Dr. Chouhan, Casualty Ward In-charge, JAH Hospital Gwalior to P.S. Padav. Having received the information entered in Rojnamcha Sanha No. 1472/23.09.2009. Thereafter, ASI Mr. Ashok Joshi reached on the spot. Early in the morning Smt. Rashmni Gupta was shifted to Safdarjung Hospital, New Delhi, where during treatment, on 26th September, 2009 she died. On 30.09.2009, one written complaint was filed by Smt. Madhu Gupta, who is the mother of the deceased, against present petitioner who is the husband of the deceased, Shriniwas Gupta (Father-in-law), Smt. Usha Gupta (Mother-in-law), Lalit Gupta (brother-in-law-Devar) and Smt. Shweta Gupta (Sister in law-Devrani) by alleging that her daughter was subjected to cruelty on non-fulfillment of demand of dowry and because of that she died unnaturally due to burn injuries in the intervening night of 22-23/9/2009. Crime No. 584/2009 for the offence punishable u/s 498A, 306 IPC was registered at Police Station Padav, District Gwalior. After completion of investigation, charge sheet has been filed. Case was committed to the Court of Session where Session Trial No. 94/2012 has been registered.

Initially, being aggrieved by the order dated 02.01.2013 of dismissal of application u/s 216 of Cr.P.C., this petition was preferred u/s 482 Cr.P.C. on 07.02.2013. During the course of argument on 04.12.2013, it was prayed by the learned counsel on behalf of the petitioner that this petition may be treated as Criminal Revision because order passed u/s 216 Cr.P.C. is revisable. Prayer was allowed and the petition preferred u/s 482 Cr.P.C. (Mcrc No. 998/13) was converted and registered as Criminal Revision No. 1010 of 2013. In this way, delay of 90 days in filing Criminal Revision was also condoned by allowing the application filed u/s 5 of the Limitation Act.

It is pertinent to mention here that charges u/s 498A and 306 IPC were framed by X ASJ, Gwalior on 25.04.2012, in the aforesaid Session Trial, against all the five accused persons. Being aggrieved by that co-accused Shriniwas Gupta and Smt. Usha Gupta both had preferred Criminal Revision No. 320/12 and the same was decided on 05.10.2012 by this Court and both the petitioners were discharged of the offence punishable u/s 306 of IPC. Similarly, petitioner Lalit Gupta and Smt. Shewta Gupta both had preferred Criminal Revision No. 424/2012 and the same was partly allowed on 11.12.2012. Sessions Judge was directed to proceed with trial against all these petitioners of both revisions, only for the offence punishable u/s 498A of IPC. It is also pertinent to mention here that present petitioner Mr. Naveen Gupta had not preferred any such Criminal Revision against the order of framing of charges u/s 498A and 306 IPC passed against him and instead such criminal revision he preferred an application u/s 216 Cr.P.C. before the Session Court on 02.01.2013 by praying that he also be discharged of the offence punishable u/s 306 IPC as other four co-accused persons were discharged by Hon. High Court as mentioned above. Said application was dismissed by the trial court on the ground that prima facie case u/s 306 of IPC was made out against the petitioner Naveen Gupta who was the husband of the deceased. In such circumstances, present revision has arisen.

It is submitted by Shri Sanjay Gupta, learned counsel appearing on behalf of the petitioner, that when four other co-accused persons were discharged of the offence punishable u/s 306 IPC then on the same set of evidence petitioner can not tried for the same offence but he should have also been discharged of the offence by the trial court but his application was illegally dismissed. It was also submitted by the learned counsel that prayer for discharge may also be made u/s 216 Cr.P.C. at any stage before passing the final judgment.

On the contrary, it is submitted by Shri Shrivastava, learned Panel Lawyer, that provisions contemplated u/s 216 of Cr.P.C. are not concerned with discharge of the accused. For this purpose, special provision for discharging the accused is contemplated u/s 227 of Cr.P.C. and the relief can be claimed u/s 227 Cr.P.C. at the time of passing the order for framing of charge u/s 228 Cr.P.C. It is also submitted by him that petitioner had not preferred any Criminal Revision being aggrieved by the order of framing charge dated 25.04.2012 by Session Court, therefore, now no relief can be granted in this petition. It is also argued by him that though High Court has wide powers u/s 482 Cr.P.C. but the same cannot be exercised if there is or was a specific provision in the Code for the redress of the grievance of the aggrieved party.

After having regard to the entire arguments advanced by the learned counsel for the parties and on perusal of the record, we will discuss the aspect of law and facts in the following paragraphs:

Sections 227 and 228 of Cr.P.C. read as thus:

227 Discharge-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Framing of charge-

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

From the provisions mentioned above, it appears that the law provides that on considering the relevant materials if the Court considers that there is no sufficient ground for proceeding against the accused then the accused has to be discharged, but if the Court is of opinion on such consideration that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session then charge has to be framed against the accused. It is needless to mention that the question whether charge should be framed against the accused or he should be discharged has to be considered simultaneously and if on such consideration the Court thinks that the accused should not be discharged and rather charge should be framed against him, in that case the charge has to be framed against the accused. It is evident from the scheme of the provisions of the Chapter XVIII of the Criminal Procedure Code as well as from the logic of the sequence that once the Court decides to frame charge under S. 228 Cr.P.C. there is no question of discharging him at a later stage by exercising the power u/s 227, Cr.P.C. Once charge has been framed u/s 228 the trial has to proceed according to the procedure provided in the sections following the S. 228, Cr.P.C. and the process cannot be put to back-gear for discharging the accused thereafter under S. 227, Cr.P.C. Where a charge has been framed by the Court of Session under S. 228, the said Court thereafter cannot discharge the accused under S. 227, Cr.P.C. Even if an accused against whom a charge has been framed under S. 228, Cr.P.C. feels aggrieved by the framing of charge he has either to face the trial or he may approach the High Court in its revisional jurisdiction. Otherwise, if the Court of Session remains free to discharge an accused on reconsideration under S. 227 even after a charge has been framed under S. 228, in that case it would be open to the accused persons against whom charge has already been framed to move the same Court one after another for reconsideration and discharge on repeated occasions thereby making it practically impossible to proceed with the trial of the case expeditiously or at all, even if such moves lack merit.

Section 216 of the Code of Criminal Procedure reads, thus:

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

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

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

A plain reading of the said section would show that the alteration or addition referred to therein contemplates modification of or addition to charge but not discharging an accused in respect of a charge already framed so as to bring the trial itself to an end in respect of such accused. There may be addition of a new charge or even substitution of a charge in an appropriate case but S. 216 does not contemplate discharge of an accused or the termination of the trial in respect of any accused. Sub-section (2) requires that every alteration or addition to a charge has to be read and explained to the accused. The question of reading and explaining such alteration or addition would be meaningless in a good number of cases if discharge is contemplated by such alteration or addition. Sub-secs. (3) and (4) speak of proceeding with the trial or of directing a new trial or adjourning the trial. This also is a clear indication that any alteration or addition to charge shall not be of such nature as to get the accused discharged and bring the trial to an end in respect of that accused. Sub-sec. (5) requires that where the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained on the same facts. Here also the sub-section contemplates of proceeding with the trial with fresh sanction, if necessary, and not ending the trial in respect of any accused by any obliteration of the charge. It is therefore evident that S. 216 does not empower the Court to discharge an accused and bring the trial itself to an end in respect of an accused against whom a charge has already been framed, without following the procedure prescribed in the Code regarding the trial of a case. Of course there are certain independent provisions prescribed in the Code itself which when brought into play in any particular case may result in ending the trial at an intermediate stage, as for example, where the prosecution is withdrawn with the consent of the Court under S. 321 or when an offence is validly compounded during trial under S. 320, but S. 227 being designed for a particular stage of the judicial proceeding one cannot revert to that provision when that stage has already been crossed.

It is submitted by Shri Gupta, learned counsel, that although criminal courts cannot alter judgment or final order but it does not mean that they cannot change their view resulting in discharging the accused by exercising their powers given u/s 216 Cr.P.C.

The argument advanced by the learned counsel Shri Gupta is not acceptable. Section 362 Cr.P.C. has been made for this purpose which reads as thus:

Court not to alter judgment - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

In the opinion of this Court, on bare perusal of provision of Section 362 Cr.P.C. as mentioned above, it is clear that it refers to judgment or final order disposing of a case but that does not mean that all other orders can be reviewed by the Court at any time or in any manner. Had it been such position then certainly it would have been provided in Section 362 Cr.P.C. that except in judgment or in final order resulting final disposal of case, Court can review any order passed by its own, at any time. Therefore, in the absence of such specific proviso thereto, we cannot interpret Section 362 Cr.P.C. that trial court can set aside order of charge and discharge the accused u/s 216 Cr.P.C.

It is also submitted by Shri Gupta, learned counsel, that litigant cannot be deprived of justice only on the technical grounds. Because prima facie no case is made out also against the petitioner u/s 306 of IPC then he should also be benefited as other co-accused in their respective criminal revisions. The High Court by exercising its inherent powers u/s 482 Cr.P.C. may render justice to the petitioner in this revision.

Section 482 Cr.P.C. reads as thus:

Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Here again, argument of Shri Gupta can not be taken into consideration because it is settled law that (i) the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (ii) that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; and (3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

Suffice it to say that no strait-jacket formula is available to exercise or not to exercise the inherent powers. The power u/s 482 of the Code is not restricted or controlled by any other provisions of the Code so as to restrict its application. However, where alternative remedy is available, High Court should not be inclined the invoke inherent powers rather allow the parties to work out their remedies in the appropriate forum.

In the case in hand, there was ample opportunities available to the petitioner to file a Criminal Revision against the order of framing charge as preferred by other co-accused persons but even then that remedy had not been availed by the petitioner and so also reasons have also not been shown by him that as to why he had not availed the opportunity of preferring criminal revision. Now, emotionally one cannot be permitted to get relief by invoking the inherent powers of High Court u/s 482 Cr.P.C. otherwise it will be amounting to defeat the other remedies available to litigant under this Code. In such fashion, by ignoring the other available alternative remedial provisions by exercising the power u/s 482 Cr.P.C. the Court cannot grant any relief.

Accordingly, present petition is dismissed. However, the liberty is granted to the petitioner to raise all the objections and grounds as mentioned in this petition before the trial court at appropriate stage and in said eventuality same be considered and decided by the learned trial court in accordance with law. Thus, the Session Court is directed to proceed with the trial.

No order as to costs.

A copy of this order be sent to the trial court for necessary compliance.