Thursday, 12 November 2015

When framing of charge shall not deemed to be interlocutory order?

In support of his argument, the decision reported

in Sreedharan v. State of Kerala (2005(2) KLT 108) was

relied on. At para.7, this Court has held:

               "Framing of charge may or may not
         amount to interlocutory order as it depends
         upon facts of the case, the statute under which
         proceedings have been initiated, as also the
         nature of objections raised against it etc. If
         the objection or objections raised against the
         order framing charges are such that upholding
         such objection/objections would result in
         termination of the proceedings, then framing
         of charge cannot be regarded as merely
         interlocutory   order   for    the  purpose     of
         revisional jurisdiction under S.397(2) of the
         Code."
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3162 of 2009()


AKBAR.A., PUTHEN VEEDU, NORTH MSM
                     
                        Vs
STATE OF KERALA, REP. BY PUBLIC
                      

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :24/11/2009

Citation: 2010CriLJ2555, ILR2010(2)KeralaKER, ILR2010(2)Kerala875, 2010 (1) KHC 738, 2010(1)KLT714


     The revision petitioner is the defacto complainant in

CC.No.201/2006 on the file of the Chief Judicial Magistrate

Court, Kollam. Respondents 2 to 11 are being prosecuted

by the first respondent for offence under Section 120B IPC

and other provisions.    The evidence on the side of the

prosecution was closed.     The respondents 2 to 11 were

questioned under Sec.313 of the Code of Criminal

Procedure and thereafter the prosecution and the accused

were being heard. Amidst the hearing, the Deputy Director

of Prosecution, Kollam, who is conducting the prosecution

filed a petition as CMP.No.9443/2009 seeking an order to

alter charge. In the affidavit accompanying the petition it

was stated that during the course of hearing it was argued

that the charge was not specific and it had prejudiced the

accused and the charge framed is not in accordance with

the final report submitted by the police and that the


beginning and end of the commission of offence under

Sec.120B IPC is not specified and that it was wrongly

mentioned that conspiracy was alleged subsequent to the

unlawful assembly and that the involvement of the 11th

accused was not specifically mentioned in the charge and

such omission may even entitle the respondents 2 to 11 for

acquittal and couldn't be cured in appeal.

      2.    After hearing the accused and the prosecution,

the learned Magistrate by the order impugned dated

8.10.2009 dismissed the petition.       Para.2 of the order

impugned reads as follows:

               "2. It is true that as per Sec.216 of the
         Cr.P.C. the court may alter charge at any time
         before Judgment is pronounced. But when a
         charge is altered by the court after the
         commencement of trial, the prosecution and
         the accused shall be allowed to recall and
         examine witness with reference to such
         alteration. But charge in this case was framed
         long back and examination of the witnesses for
         both the prosecution and defence over and the
         matter is heard also. According to me, if the
         charge is altered at this stage, the disposal of
         the case will be prolonged further. Time limit
         is also prescribed by the Hon'ble High Court
         for the disposal of the case. So, the petition is
         liable to be dismissed."


      3.    Assailing   the legality, correctness   and   the

propriety of the above order, this revision petition was filed

by the defacto complainant.

      4.    The learned counsel for respondents 2 to 11

raised a preliminary objection stating that the order

impugned is of an interlocutory nature and shall not be

interfered in exercise of the revisional powers.      It was

argued that it is the duty of the court to frame charge and

the charge was properly framed and there is nothing to

alter the charge and that the prayer is only for altering the

charge and that even if the petition is allowed it would not

culminate the proceedings. So, the order is purely one of

interlocutory nature which is not liable to be challenged in

revision. The counsels appearing for the party respondents

canvased my attention to the decision reported in Bhaskar

Industries Ltd. v. B.D. & A.Ltd. [2001(3) KLT 307 (SC)]. At

para.8, it is held:

               "[W]hether an order is interlocutory or
         not, cannot be decided by merely looking at
         the order or merely because the order was
         passed at the interlocutory stage.    The safe

         test laid down by this Court through a series of
         decisions is this: If the contention of the
         petitioner who moves the Superior Court in
         revision, as against the order under challenge
         is upheld, would the criminal proceedings as a
         whole culminate? If it would, then the order is
         not interlocutory in spite of the fact that it was
         passed during any interlocutory stage."

On the other hand, the learned counsel for the revision

petitioner submitted that the order altering charge is

revisable. In support of his argument, the decision reported

in Sreedharan v. State of Kerala (2005(2) KLT 108) was

relied on. At para.7, this Court has held:

               "Framing of charge may or may not
         amount to interlocutory order as it depends
         upon facts of the case, the statute under which
         proceedings have been initiated, as also the
         nature of objections raised against it etc. If
         the objection or objections raised against the
         order framing charges are such that upholding
         such objection/objections would result in
         termination of the proceedings, then framing
         of charge cannot be regarded as merely
         interlocutory   order   for    the  purpose     of
         revisional jurisdiction under S.397(2) of the
         Code."

      5.    Since the prayer of the Deputy Director of

Prosecution in the petition was only to alter the charge,

even if the charge is altered that would not culminate the


proceedings. In the above circumstance, applying the ratio

of the above decisions, I find that the order impugned is of

an interlocutory nature and the objection raised by the

respondent is sustainable and the order impugned is not

liable to be interfered in exercise of the revisional powers.

      6.    But, for this reason, I find that this Court cannot

shut its eyes in the event the order impugned is vitiated by

illegality, impropriety or error. It is not disputed that it is

the duty of the trial court to frame charge in the proper

form and the charge shall be specific. When the Public

Prosecutor brings to the notice of the Court that charge

framed is not specific or that it is erroneous or not in

accordance with the report submitted by the investigating

officer, it is for the Court to see whether there is any

substance in the allegation or not. If the charge framed is

not specific or not in accordance with the report submitted

by the police, it is the duty of the Magistrate to alter the

charge and to have a just and fair trial. The last three

sentences of the impugned order quoted above would show


that the learned Magistrate instead of examining whether

the charge framed is sufficient or proper or specific, it

dismissed the petition with a reasoning that altering of the

charge at that stage would prolong the disposal of the case.

It appears that the learned Magistrate had declined to

examine the issue because of the time limit prescribed by

this Court for the disposal of the case. Such an approach

would vitiate the trial and tantamount to miscarriage of

justice.

      7.    In an order in IA.No.7588/2009 in WP(C).

No.396/2009 this Court reminded the lower court that, the

time limits are fixed by superior courts in their anxiety to

ensure expeditious disposal. All subordinate courts must

realise that between the interests of justice and time limit

prescribed, it is the interests of justice that shall have to

prevail. If the trial court finds that justice in the given case

cannot be achieved within the prescribed time limit, it is for

such court to apply for extension of time. Time limits are

not fixed so that the cases can be disposed of somehow.


      8.    It is ignoring that, the learned Magistrate refused

to have the petition disposed on merits with a reason that

this Court has prescribed time limit for disposal of the case.

It is not at all a good reasoning and it can no way be

allowed.     The reasoning that altering of charge would

prolong the trial is also erroneous and not sustainable. A

request made by the prosecutor to alter the charge with an

allegation that the charge is not in accordance with the

report of the investigating officer could be dismissed, only if

the allegation is not true. A trial without a proper charge

would only lead to miscarriage of justice.            In such

circumstances, this Court shall not hesitate to interfere in

exercise of the inherent powers vested on this Court under

Sec.482 of the Code of Criminal Procedure, though no

revision is maintainable.

      9.    This Court in Rocky V.A. v. V.I.Vakkachan (2009

(4) KHC 422), at para.5 it held as follows:

         "No objection regarding maintainability of the
         revisions was raised at that time. No doubt
         that      would    not    make    the   revisions
         maintainable. Assuming that power of revision


         cannot be exercised in view of the bar under
         Section 397(2) of the Cr.PC, Section 482 of
         that Code empowers this Court to pass
         appropriate orders if interference is warranted
         on the facts of the case. Therefore I am not
         inclined to dismiss the petitions for the reason
         stated by the learned counsel and instead
         proceed to consider the contentions raised by
         learned counsel in exercise of the powers
         conferred under Section 482 of the Cr.PC."

      10. In the event it is revealed that an order assailed is

opposed to law or not sustainable and it is not liable to be

interfered in revision, it would be appropriate for this Court

to rectify the same in exercise of the inherent powers of

Sec.482 Crl.PC.         In this case, instead of the learned

Magistrate examining whether the charge is specific and in

accordance with the report filed by the Investigating

Officer, the request of the learned Public Prosecutor was

declined for the reason which is not at all justified. So, that

order is liable to be set aside in exercise of the powers

conferred on this Court under Sec.482 Cr.PC.

      11. In the result, though the revision petition is not

entertainable, as the impugned order is one of interlocutory

nature, in exercise of the inherent powers vested on this



Court under Sec.482 of the Code of Criminal Procedure, the

order impugned is set aside. The petition is remitted back

to the trial court for fresh disposal in accordance with law.

In the event the charge framed is found proper or perfect

and specific, the learned Magistrate may proceed. In the

event the charge is found not specific and appropriate, it is

upto him to make necessary alterations and to have a

disposal on merit. In case the learned Magistrate couldn't

dispose the case within the time limit prescribed by this

Court, the learned Magistrate may address this Court for

extension of time.

      The Criminal Revision Petition is disposed as above.




                                P.S.GOPINATHAN, JUDGE.

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