Thursday, 15 September 2016

Whether court can discharge accused after framing of charge?

The question raised in the present case about discharge of an
accused at the stage of consideration of an application under Section 216
Cr.P.C. was directly involved in the case of Tapati Bag Vs. Patitpaban
Ghosh & Ors. (supra). A learned Single Bench of the Hon'ble Calcutta
High Court after considering the provisions of Sections 227, 228 and 216
Cr.P.C. held that 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 Section
228 Cr.P.C., there is no question of discharging him at a later stage by
exercising the power under Section 227 Cr.P.C. Once charge has been
framed under Section 228 the trial has to proceed according to the
procedure provided in the sections following the Section 228 Cr.P.C. and
the process cannot be put to back-gear for discharging the accused
thereafter under Section 227 Cr.P.C. Where a charge has been framed by
the Court of Session under Section 228, the said Court thereafter cannot
discharge the accused under Section 227 Cr.P.C. Even if an accused
against whom a charge has been framed under Section 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. If the Court of
Session remains free to discharge an accused on reconsideration
under Section 227 even after a charge has been framed under Section12
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. After taking into consideration
Section 216 Cr.P.C., it was further held that a plain reading of the 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 Section 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-sections (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-section (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 any13
accused by any obliteration of the charge. It is therefore evident
that Section 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. It was also held that
Section 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 was also held that the Court of Session has no power to
discharge an accused under Section 227 once a charge under Section 228
has already been framed.
 The view taken by the learned Single Bench of the Calcutta
High Court is sound as it is supported by reasons and the relevant legal
provisions and I also endorse the same. In the present case, petitioners
alongwith co-accused are facing trial before a Court of Sessions. As already
said, charge for the aforesaid offences was directed to be framed against
the petitioners by the Court below vide a fresh order dated 7.1.2012 which
clearly means that the prayer made on their behalf for their discharge was
declined. No doubt the petitioners had a right to challenge the order dated
7.1.2012 before this Court by way of a revision petition and in fact they
challenged that order as already said, but petitions filed by the petitioners
were disposed of by this Court vide order dated 13.8.2013 on their own
prayer with liberty to move an application under Section 216 Cr.P.C.
Disposal of petitions filed by the petitioners against the order dated
7.1.2012 means that this Court did not find any merit in the petitions filed
by the petitioners and the order dated 7.1.2012 was affirmed and upheld
by this Court and the same attained finality. Once the order dated14
7.1.2012 attained finality even at the level of High Court there is no
question of discharge of petitioners at any subsequent stage. The only
liberty which was given to the petitioners was to move an application
under Section 216 Cr.P.C. but that does not mean that a new right was
created in their favour to apply for their discharge. No illegality, perversity
or impropriety has been committed by the Court below while refusing their
discharge.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR

S.B.Criminal Revision Petition No.577/2015
Smt.Anita Singh State of Rajasthan 
Dated:12-9-2016


These two Criminal Revision Petitions under Section 397 read
with Section 401 Cr.P.C. have been filed by the accused-petitioners against
the order dated 5.2.2015 passed by the Special Judge, Women Atrocities
and Dowry Cases, Jaipur Metropolitan, Jaipur in Sessions Case No.22/2009
whereby the learned trial Court dismissed the applications filed by the
petitioners under Section 216 read with Section 239 Cr.P.C. with a prayer
to discharge them for the offences for which they are being prosecuted. As
both these petitions are based on common questions of law and fact, with
the consent of learned counsel for the parties, they are heard together and
are being decided by this common order.
Brief relevant facts for the disposal of these petitions are that
marriage between the complainant-Smt.Renu Khidiya and co-accused-Shri
Bhupendra Singh took place on 22.4.2004 at Jaipur in accordance with the
Hindu Usages and Rites and FIR No.33/2006 came to be registered at
Police Station Mahila Thana (East), Jaipur on 26.5.2006 at the instance of
the complainant for offences under Sections 498-A, 406, 313 and 120-B
IPC and after investigation charge-sheet was filed for the aforesaid
offences against the petitioners and co-accused. It is to be noted that
petitioner-Smt.Anita Singh is sister-in-law, petitioner-Raghuraj Singh is
father-in-law, petitioner-Smt.Manohar Kanwar is mother-in-law of the
complainant whereas accused-petitioner Dr.Chetna Agarwal is a practising
doctor, who at the time of the said incident was allegedly working in
Meera Nursing Home, Jaipur. Learned Court below vide order dated
11.11.2010 directed charge to be framed against the petitioners for
aforesaid offences which was challenged by them in this Court by way of3
S.B.Criminal Revision Petition Nos.25/2011 and 253/2011 respectively and
the same were disposed of vide order dated 2.11.2011 in the manner that
order dated 11.11.2010 was set aside and the Court below was directed to
reconsider the question of framing of charge after considering the
judgments cited on behalf of the petitioners and pass a fresh order in
accordance with law. In compliance of the order dated 2.11.2011, the
Court below reconsidered the question of framing of charge against the
petitioners and again vide order dated 7.1.2012 charge for the aforesaid
offences was ordered to be framed against the petitioners. The order
dated 7.1.2012 was challenged by the petitioners before this Court by way
of S.B.Criminal Revision Petition No.172/2012 and S.B. Criminal Revision
Petition No.74/2012 and the same were disposed of vide order dated
13.8.2013 with liberty to the petitioners to move an application under
Section 216 Cr.P.C. and direction to the Court below to decide the same
and further liberty to the petitioners to file revision petition before the High
Court against the order which the Court below may pass on the application
to be filed by them under Section 216 Cr.P.C. In pursuance of the liberty
given to them petitioners filed two separate applications under Section 216
read with Section 239 Cr.P.C. on 19.10.2013 with prayer to discharge them
from the offences for which charge-sheet has been filed against them.
Learned Court below after hearing the respective parties dismissed the
application filed by the petitioners vide impugned order dated 5.2.2015.
Feeling aggrieved by the same, petitioners are again before this Court by
way of these revision petitions.
The moot question arising for decision in these petitions is
"Once the trial Court has ordered to frame charge for some offences4
against the petitioners and the revision petitions filed by them before this
Court challenging the order of framing of charge have been disposed of
without setting aside the order of charge, whether prayer to discharge
them can be made by the petitioners in an application subsequently filed
under Section 216 read with Section 239 Cr.P.C ?"
In support of the petitions, learned counsel for the petitioners
jointly submitted as below:-
(1) If no material/evidence is available on record to constitute an
offence for which charge has already been framed against an accused, he
can be discharged by the trial Court at any subsequent stage including at
the stage of considering an application under Section 216 Cr.P.C. also as
there is no prohibition or bar that at a subsequent stage of the
proceedings trial Court is not empowered to discharge an accused for the
offence for which charge has already been framed. Under Section 216
Cr.P.C. the trial Court is empowered not only to alter a charge already
framed against the accused and add charge for an offence for which
charge has not been framed against him, but also discharge the accused if
it is found by the Court that no material is available to consitute the
offence for which charge has already been framed. At any subsequent
stage also accused can be discharged even if fresh material and evidence
has not come on record. Court can reconsider the evidence already
available on record to arrive at a finding in fact that the essential
ingredients required to constitute the offence in question are not made
out. Reconsideration of evidence available on record does not amount to
recall/review of the previous order but only ractification of the error
committed by the Court.5
(2) In the present case, order dated 11.11.2010 was set aside by this
Court and the Court below was directed to pass fresh order after
considering and keeping in mind the judgments cited on behalf of the
petitioners but Court below without following the directions of this Court
and without considering and discussing the judgments cited before it on
behalf of the petitioners again ordered to frame charge against them in a
mechanical way without application of mind vide order dated 7.1.2012
which was again challenged by the petitioners before this Court. This Court
while disposing of the petitions filed by the petitioners vide order dated
13.8.2013 not only granted liberty to them to move application under
Section 216 Cr.P.C. but also granted further liberty to file revision petition
against the order likely to be passed on such application which clearly
shows that the question of framing of charge against petitioners was kept
open and the direction to the Court below in fact was that the issue to
frame charge is required to be reconsidered and the petitioners are liable
to be discharged if the Court finds that no offence has been committed by
them but the Court below did not consider this aspect of the matter in a
proper manner and dismissed their applications under Section 216 read
with Section 239 Cr.P.C. merely by observing that after passing of order
dated 7.1.2012, there is no substantial change in the facts and
circumstances of the case and no fresh evidence has come on record so as
to add or alter the charge already framed. Once the order dated 7.1.2012
was challenged by the petitioners before this Court and the petitions filed
by them were disposed of vide order dated 13.8.2013 with the aforesaid
liberty and direction, it clearly meant that order dated 7.1.2012 stood set
aside and a fresh order to frame charge or not was required to be passed6
by the Court below. It is to be noted that in the applications filed under
Section 216 read with Section 239 Cr.P.C., prayer for discharge was made
by the petitioners and not for alteration or addition of the charge.
(3) This Court under its revisional jurisdiction has wide power to
consider in these petitions also whether sufficient evidence is available on
record to frame charge against the petitioners for any of the offence for
which charge-sheet has been filed against them. Even if their previous
revision petitions against the order of framing of charge have not been
allowed and only disposed of on their prayer with liberty to move
application under Section 216 Cr.P.C., High Court while exercising its
revisional jurisdiction at any stage can examine the correctness, legality or
propriety of any order passed by a Subordinate Criminal Court and such
jurisdiction can be exercised even suo-moto. Hence, the correctness,
legality and propriety of the order of framing of charge can be examined
by this Court even in these petitions.
(4) In support of the present applications also, several judgments were
cited and relied by the petitioners which have although been referred in
the impugned order but they have neither been discussed nor reasons
have been recorded for their inapplicability in the present case and on this
ground alone the impugned order is liable to be set aside and quashed and
direction is required to be made to the Court below for fresh consideration.
 In support of his submissions, learned counsel relied upon the
cases of Anant Prakash Sinha alias Anant Sinha Vs. State of
Haryana & Anr. reported in AIR 2016 SC 1197, Swapnil & Ors. Vs.
State of Madhya Pradesh reported in 2014 (3) Cr.Court Cases 007
(SC) and Shrerish Hardenia & Ors. Vs. State of Madhya Pradesh &7
Anr. reported in (2014) 14 SCC 406.
On the other hand, learned Public Prosecutor supported by
learned counsel for the respondent-complainant controverting the
submissions made on behalf of the petitioner, submitted as below:-
(1) As the petitions filed against the order of framing of charge dated
7.1.2012 were not allowed on merit and the same were disposed of on
the prayer of the petitioners with liberty to move application under
Section 216 Cr.P.C., that order attained finality and the petitioners were
not entitled to make fresh prayer for their discharge in the garb of
application under Section 216 Cr.P.C. Under Section 216 Cr.P.C. the prayer
that can be made is either for alteration or addition of charge and never
for discharge as seperate provision is available in Cr.P.C. to an accused for
that relief.
(2) Once the stage to discharge an accused under Section 227 or 239
Cr.P.C. is over and Court proceeds to frame charge and that order attains
finality, there is no subsequent stage at which the accused can be
discharged. Once after framing of charge trial has commenced, accused
can either be convicted or acquitted and not discharged in a sessions or
warrant case.
(3) In the present case, the application under Section 216 Cr.P.C. has
rightly been dismissed by the Court below as there was no substantial
change in the facts and circumstances of the case and no fresh evidence
was made available on record. Once on the basis of evidence available on
record order to frame charge has been passed which has been upheld by
this Court also, there is no question of discharge of the petitioners even by
this Court in these petitions.8
In support of his submissions, learned counsel for the
respondent-complainant relied upon the case of Tapati Bag Vs.
Patitpaban Ghosh & Ors. reported in 1993 Cr.L.R.3912 (Calcutta
High Court).
I have considered the submissions made on behalf of the
respective parties and the material made available on record as well as the
relevant legal provisions and the case law relied upon on behalf of the
parties.
Sub-section (1) of Section 216 Cr.P.C. which falls under
Chapter-XVII provides that any Court may alter or add to any charge at
any time before judgment is pronounced. This provision does not speak
about discharge of an accused against whom charge for an offence has
already been framed and it speaks only for alteration or addition to any
charge which has already been framed against such an accused. ChapterXVIII
of the Code provides for trial before a Court of Session and Section
227 thereof provides that 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. Section 228
provides that if after such consideration and hearing as aforesaid the
Judge is of the opinion that there is ground for presuming that the accused
has committed an offence which is exclusively triable by the Court he shall
frame in writing a charge against the accused. It is thus clear that in a
case which is triable before a Court of Sessions, these provisions provide in
what condition and in what manner the accused can be discharged for an9
offence for which he has been prosecuted and in what condition and the
manner the Sessions Judge would proceed to frame charge against him. A
simultaneous reading of Section 216 and Sections 227 and 228 Cr.P.C.
makes it abudantly clear that these provisions are entirely separate and
independent to each other and where Section 216 Cr.P.C. provides for
alteration or addition of a charge in a case in which charge has already
been framed against an accused whereas Sections 227 and 228 provide for
discharge of an accused at an initial stage or framing of charge against
him in a Sessions case. I am of the considered view that in a sessions case
once the Court proceeds to frame charge against an accused after
declining his prayer to discharge him for the offence for which he has been
prosecuted by way of charge-sheet, there is no subsequent stage at which
the accused can be discharged. Similarly, Section 239 which falls under
Chapter-XXI of the Code providing for trial of warrant cases by Magistrates
provides that if upon considering the police report and the documents sent
with it under Section 173 and making such examination, if any, of the
accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard the Magistrate
considers the charge against the accused to be groundless, he shall
discharge the accused and record his reasons for so doing. This provision
also clearly speaks about discharge of an accused at an initial stage in
warrant cases. According to Section 240 Cr.P.C. if upon such
consideration, examination, if any, and hearing, the Magistrate is of the
opinion that there is ground for presuming that the accused has committed
an offence triable under this Chapter, which such Magistrate is competent
to try and which in his opinion could be adequately punished by him, he10
shall frame in writing a charge against the accused. These provisions also
clearly state that in warrant cases if the Magistrate declines to discharge
the accused for the offence for which he has been prosecuted and
proceeds to frame charge against him, there is no subsequent stage at
which the accused can be discharged in any circumstance.
Hon'ble Supreme Court in the case of Anant Prakash Sinha
alias Anant Sinha Vs. State of Haryana & Anr.(supra) after
considering many of its previous decisions, in Para 16 of the report has
held that:
"The court can change or alter the charge if there is defect or
something is left out. The test is, it must be founded on the material
available on record. It can be on the basis of the complaint or the
FIR or accompanying documents or the material brought on record
during the course of trial. It can also be done at any time before
pronouncement of judgment. It is not necessary to advert to each
and every circumstance. Suffice it to say, if the court has not
framed a charge despite the material on record, it has the
jurisdiction to add a charge. Similarly, it has the authority to alter
the charge. The principle that has to be kept in mind is that the
charge so framed by the Magistrate is in accord with the materials
produced before him or if subsequent evidence comes on record. It
is not to be understood that unless evidence has been let in,
charges already framed cannot be altered, for that is not the
purport of Section 216 Cr.P.C."
In the aforesaid case, Hon'ble Court no where has held that
while considering an application under Section 216 Cr.P.C. or otherwise
considering the issue regarding alteration or addition of charge Court is
empowered to discharge an accused against whom charge has already
been framed at any subsequent stage of the proceedings. Hon'ble Court in
this case has only held that in what manner, and on what material and
evidence, Court can add or alter the charge.11
 The question raised in the present case about discharge of an
accused at the stage of consideration of an application under Section 216
Cr.P.C. was directly involved in the case of Tapati Bag Vs. Patitpaban
Ghosh & Ors. (supra). A learned Single Bench of the Hon'ble Calcutta
High Court after considering the provisions of Sections 227, 228 and 216
Cr.P.C. held that 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 Section
228 Cr.P.C., there is no question of discharging him at a later stage by
exercising the power under Section 227 Cr.P.C. Once charge has been
framed under Section 228 the trial has to proceed according to the
procedure provided in the sections following the Section 228 Cr.P.C. and
the process cannot be put to back-gear for discharging the accused
thereafter under Section 227 Cr.P.C. Where a charge has been framed by
the Court of Session under Section 228, the said Court thereafter cannot
discharge the accused under Section 227 Cr.P.C. Even if an accused
against whom a charge has been framed under Section 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. If the Court of
Session remains free to discharge an accused on reconsideration
under Section 227 even after a charge has been framed under Section12
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. After taking into consideration
Section 216 Cr.P.C., it was further held that a plain reading of the 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 Section 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-sections (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-section (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 any13
accused by any obliteration of the charge. It is therefore evident
that Section 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. It was also held that
Section 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 was also held that the Court of Session has no power to
discharge an accused under Section 227 once a charge under Section 228
has already been framed.
 The view taken by the learned Single Bench of the Calcutta
High Court is sound as it is supported by reasons and the relevant legal
provisions and I also endorse the same. In the present case, petitioners
alongwith co-accused are facing trial before a Court of Sessions. As already
said, charge for the aforesaid offences was directed to be framed against
the petitioners by the Court below vide a fresh order dated 7.1.2012 which
clearly means that the prayer made on their behalf for their discharge was
declined. No doubt the petitioners had a right to challenge the order dated
7.1.2012 before this Court by way of a revision petition and in fact they
challenged that order as already said, but petitions filed by the petitioners
were disposed of by this Court vide order dated 13.8.2013 on their own
prayer with liberty to move an application under Section 216 Cr.P.C.
Disposal of petitions filed by the petitioners against the order dated
7.1.2012 means that this Court did not find any merit in the petitions filed
by the petitioners and the order dated 7.1.2012 was affirmed and upheld
by this Court and the same attained finality. Once the order dated14
7.1.2012 attained finality even at the level of High Court there is no
question of discharge of petitioners at any subsequent stage. The only
liberty which was given to the petitioners was to move an application
under Section 216 Cr.P.C. but that does not mean that a new right was
created in their favour to apply for their discharge. No illegality, perversity
or impropriety has been committed by the Court below while refusing their
discharge.
Consequently, both the revision petitions being meritless are,
hereby, dismissed. Stay applications also stand disposed of.
 (PRASHANT KUMAR AGARWAL), J

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