Sawaran Singh vs State of Punjab

M.M. Punchhi, J. (Oral)

This is a petition under Section 482 of the Code of Criminal Procedure invoking inherent powers of this Court to prevent a step of the trial Magistrate which is termed as abuse of the process of Court and manifestly unjust.

Broad facts giving rise to this petition are that the petitioner Sawaran Singh and three others are facing trial in a criminal Court under Sections 323/324/341/34, Indian Penal Code. The trial commenced way back in 1983 when charge was framed against them on 10.8.1983. The prosecution on 2.4.1984 examined Dr. N.P. Aggarwal P.W.1. He declared one of the injuries on the victim to be grievous on the basis of an Xray report received by him. On 10.10.1984 Avtar Singh P.W.2, the injured person, was examined by the prosecution but he omitted to mention that his injuries were Xrayed. The prosecution evidence was closed on 29.5.1985. After recording the statements of the accused, they led defence evidence. On 5.8.1985, they examined Dr. Ashok Dhingra as a defence witness. It transpires that this doctor Ashok Dhingra was the one who had conducted the Xray examination and prepared the Xray report of the injured Avtar Singh P.W.2. Even then the prosecution did not put any question to him about the Xray report. The defence evidence was closed and the matter was put for arguments. It is then that the prosecution awoke from its slumber to have the shade of the prosecution changed.

An application was made by the Prosecutor to have Dr. Ashok Dhingra examined as prosecution witness. Shri D.S. Chatha, Chief Judicial Magistrate, Amritsar, before whom the trial was pending, vide his order dated 10.9.1985, taking into account all the aforesaid facts dismissed the application observing that it was vexatious and intended to delay the proceedings and also being devoid of force. The complainant, feeling aggrieved against the order of the Chief Judicial Magistrate, preferred a revision petition in the Court of Session. Shri M.S. Seimee, Additional Sessions Judge, Amritsar, vide order dated 16.11.1985 (Annexure P.2), dismissed the revision petition by, inter alia observing that in case the prosecution is allowed to examine Dr. Ashok Dhingra by way of additional evidence that would mean opening the entire case for trial and it would further delay the proceedings.

It appears that the case later came on the file of Shri Tara Singh, Additional Chief Judicial Magistrate, Amritsar. This time the prosecutor at the behest of the complainant moved an application for amendment of the charge to one under Section 325, Indian Penal Code. Strength in support thereof was drawn from the statement of Dr. N.P. Aggarwal P.W.1. The learned trial Magistrate, vide order dated 10.9.1986, allowed the petition despite objection of the petitioner bringing to focus the earlier referred to facts. The learned trial Magistrate took the view that the dismissal of the earlier applications of the complainant did not stand in the way in the amendment of the charge to one under Section 325, Indian Penal Code. He even found some defect in the language regarding constructive liability under Section 34, Indian Penal Code. Accordingly, under his direction, the charge was amended to include the offence under Section 325, Indian Penal Code, against Manohar Singh accused and under Section 325/34, Indian Penal Code, against the remaining accused (inclusive of the petitioner) in addition to the offences under Sections 324/323/341 read with Section 34, Indian Penal Code. He put the charge to the accused who pleaded not guilty to the same and thereupon on the statement of the learned A.P.P., he ordered summoning of Dr. N.P. Aggarwal, with regard to the request to summon Dr. Ashok Dhingra, the learned Magistrate issued notice to the accused to consider the question of summoning Dr. Dhingra being alive to the fact that he had not been cited as a prosecution witness in the challan and secondly an earlier attempt to summon him as a witness at the behest of the complainant had been dismissed. It is against this order that the accused has come to this Court by means of this petition.

The Court has ample power under Section 216 of the Code of Criminal Procedure to alter or add a charge at any time before judgment is pronounced. All what is required is that every such alteration or addition shall be read and explained to the accused. And 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, the Court may either direct a new trial or adjourn the case for such period as may be necessary. Now these are the steps which the court took on the addition of the charge. To bring the order to its logical end, Section 217 of the Code of Criminal Procedure was also employed by permitting the Prosecutor to begin with, to recall or resummon Dr. N.P. Aggarwal and also to examine the desirability of summoning Dr. Ashok Dhingra in face of the earlier/impediments and whether the evidence of Dr. Ashok Dhingra was material to further ends of justice. The Court appears to have legitimately exercised these powers under Sections 216 and 217 of the aforesaid Code. Just as well if the charge had remained unaltered, it could have exercised powers under Section 311 of the Code of Criminal Procedure if the summoning, examining, recalling and reexamining a witness at any stage appeared to the Court to be essential to the just decision of the case.

What irks the petitioner is that the effort to examine Dr. Ashok Dhingra under Section 311 of the Code of Criminal Procedure had miserably failed at an earlier stage and that the same object is sought to be achieved by reasons of an amendment of charge opening the gate for the Prosecutor under Section 217 of the Code of Criminal Procedure to summon Dr. N.P. Aggarwal and possibly Dr. Ashok Dhingra. This step of the Court is termed as an indirect review suggested impermissible under the law. On the other hand, learned Counsel for the State asserts that no review was involved in the instant case, as by addition of charge under Section 325, Indian Penal Code, the offence stood stepped up and the prosecution had a right under Section 217 of the Code of Criminal Procedure to examine any witness it thought fit to support the charge even by recalling or summoning or by examining afresh.

I have carefully considered the arguments advanced by the learned Counsel and have also viewed the pros and cons of the step taken by the learned Magistrate. It is plain from the sequence of events that the effort of all the courts has been to do justice between the parties. As long as the charge stood at the level of section 324, Indian Penal Code, neither was it necessary to call Dr. N.P. Aggarwal or Dr. Ashok Dhingra, for the effort to prove the grievous nature of one of the injuries would have been futile for no conviction in the absence of charge could be recorded thereon. The Courts then in the quest of justice rightly refused to summon. Dr. Ashok Dhingra as a prosecution witness. But now on the alteration of charge when the colour and hue of the prosecution stands changed, I fail to see why in the same quest of justice, evidence cannot be allowed to be led to prove or disprove charge under Section 325, Indian Penal Code. And in the pursuant thereof, if evidence of doctors is essential, I fail to see why that cannot be procured to pursue the cases of justice. The principles and norms relating to the adversary system applicable to civil trials cannot govern, apply or regulate a criminal trial. Here it always remains accusatorial. And when a criminal court before pronouncement of judgment wishes to pursue a course which is in consonance with justice, no fault should normally be found in exercise of its discretion, least of all, in proceedings under Section 482 of the Code of Criminal Procedure.

Thus, I am of the view that this court should not interfere in these proceedings under Section 482 of the Code of Criminal Procedure but should leave it open to be judged by the Court below and at the revisional or appellate stages if agitated by the parties, if the eventuality arises. Nothing said herein would be treated as a final expression on the discretion so exercised by the learned Magistrate.

For the foregoing reasons, I decline to interfere in the impugned order. Dismissed.