State of H.P. vs Maya Dass and Another

V.K. Mehrotra, J.—Maya Dass and Nidhi Singh, who are Respondents in this revision, are facing trial in Sessions Trial No. 2 of 1989 before the1 leaned'' Addl. Sessions Judge, Mandi, Kullu and Lahaul and Spite districts, at Mandi.

The case of the prosecution is that one Saran Dass lost his life on account of blows of stick given to him by Maya Dass. By an order dated February 25, 1989, the learned Addl. Sessions Judge framed charge u/s 304 Part II IPC read with Section 201 IPC against the accused persons. The prosecution had sought the framing of charge u/s 302 IPC on account of the assault aforesaid. The State has approached this Court for redress in the matter by filing the present revision petition under Sections 397/401 of the Code of Criminal Procedure read with Section 482 thereof.

On June 1, 1989, this Court directed issue of notice, pending admission, to the Respondents. Shri M.C. Mandhotra has put in appearance on behalf of the Respondents. Counsel for the parties prayed that this revision may be disposed of finally at the admission stage itself.

An objection of a preliminary nature has been raised by Shri Mandhotra to the effect that the present revision is not maintainable. He has urged that the order under challenge was an order of an interlocutory character which could not be assailed u/s 397(1) Code of Criminal Procedure. On account of the bar contained in Sub-section (2) thereof. The objection has been elaborated by saying that the trial was proceeding before the learned Sessions Judge who had the power to alter or add to the charge at any time before the pronouncement of judgment. As such, it could not be said that by the order under challenge any part of the proceedings before the trial Judge had come to an end so as to take the order out of the category of an interlocutory order.

It is true that Section 397(2) bars interference with an order of an interlocutory character by the Court. The provision was enacted with a view to curtail the prolongation of the proceedings by interference by the superior court with orders of an inter-locator character during the progress of the trial. It is 01 also true that the concept of an interlocutory order is the same in proceedings before a court whether they be of a civil nature or a criminal character. This is clear from the observations made by the Supreme Court in V.C. Shukla Vs. State through C.B.I., when it said (in paragraph 34. of the report) that:

��..This Court as also the Federal Court have clearly pointed out that so far as the tests to be applied to deter mine whether an order is final or interlocutory, apply as much to a civil case as to a criminal case ��.

Yet, it is the nature of the order which comes up for examination before a court which has to be looked into for deciding whether it is an order of an interlocutory nature so as to escape scrutiny u/s 397 of the Code of Criminal Procedure.

In V.C. Shukla the Supreme Court was examining the leaning to be given to the expression "interlocutory order" in the context of an appeal u/s 11 of the Special Courts Act, 1979. In that context, it referred to a very large number of its earlier decisions and, by majority, came to the ultimate conclusion that the order under challenge before it was an inter locator order against which no appeal lay u/s 11 of the Special Courts Act. What, however, was observed in the earlier part of paragraph 34 is of significance. The relevant observations are these :

Applying these tests to the order impugned we find that the order framing of the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have ''terminated'' but that is only one side of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still be alive�����

(emphasis supplied).

What was emphasised by Shri Mandhotra, appearing for the accused-Respondents, from out of the above observations, was that in the present case the trial was still on, though in respect of the offence u/s 304 Part 11/201 IPC. As the trial proceeded, if the trial Judge came to be conclusion that the offence disclosed by the evidence against the accused person (Maya Dass) was one u/s 302 IPC, he could alter the charge to one under that provision and follow the procedure contemplated by Section 216 Code of Criminal Procedure

The argument is attractive, yet, it fails on closer scrutiny. It is true that in the physical sense of the term the trial is continuing. However, in relation to the charge u/s 302 IPC, which the prosecution was seeking to be framed against Maya Dass, it had come to an end. This is so because it would not be open, to the trial Judge to record conviction u/s 302 IPC without altering the charge to one u/s 302 IPC. The object of Section 397(2) Code of Criminal Procedure would be plainly defeated if [this Court were to recommend a course by which the proceedings (against the accused person will get prolonged instead of being curtailed. The prolongation of the proceedings would be the inevitable consequence of following the course where, though on a prima facie view, a charge u/s 302 IPC deserves to be framed, the trial is permitted to continue with a charge, u/s 304 Part-II, framed against the accused person and its alteration is made at a subsequent stage to one u/s 302 IPC. It is difficult to lose sight of the fact that the alteration of the charge u/s 216, Code of Criminal Procedure is hedged in by further procedural safeguards including the adjournment of a trial or a direction for a new trial in certain circumstances.

Without intending to make any observations on the merits of the case, lest it might prejudice either the prosecution or the defense in any manner, I may only notice what the learned Additional Sessions Judge has himself observed in the order under challenge before this Court. Towards the end of paragraph 4 of the order he has observed that:

�The evidence as has been scrutinized above, prima facie shows that Maya Dass while inflicting the Lathi blows on the head of the deceased had knowledge that it is likely to cause death�

And, in paragraph 6, that:

In the case in hand, it is alleged that accused Maya Dass gave two or three blows of a stick as a result of which deceased died. There is no motive suggested. It (these) was inflicted in the spur of the moment...

On these observations it could not be said that a prima facie case for framing of the change u/s 302 IPC was not made out, particularly when it has not been found by the learned Judge, so far, that the giving of blows by Maya Dass was preceded by any quarrel between him and the deceased.

In the view that I have taken it is not necessary for me to examine the alternative submission of Shri M.L. Chauhan, learned Asstt. Advocate General, that in any case this Court could have corrected the en or committed by the trial Court by exercising the powers u/s 482 Code of Criminal Procedure.

In consequence, the revision deserves to succeed and is allowed. The learned Additional Sessions Judge is directed to frame a charge u/s 302 IPC read with Section 201 thereof.

I may say, once again, that any observation made in this order shall not be taken into account by the trial judge while coming to a conclusion, on the evidence at the trial, in respect of the culpability or otherwise of the accused persons.

Shri Mandhotra also prayed that the alteration of the charge to one u/s 302 IPC may result in the cancellation of the bail granted to the accused persons by the trial Judge. It is obvious that this order will not, ipso-facto, have that effect.

The record of the trial court had been summoned for the perusal of this Court. It shall be sent back forthwith to enable the learned Addl. Sessions Judge to proceed with the trial in accordance with law.