Criminal Procedure Code, 1973 – 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. 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. The Court of Session has no power to discharge an accused under Section 227 once a charge under Section 228 has already been framed.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
HON’BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
1. S.B.Criminal Revision Petition No.577/2015 1. Smt.Anita Singh w/o Suresh Charan D/o Raghuraj Singh, R/o Hanuwant A, BJS Colony, Jodhpur. 2. Raghuraj Singh S/o Shri Ram Singh by caste Charan, Aged about 75 years R/o 53, Devi Path, Kanota Bagh, Takhteshahi Road, Police Station Gandhi Nagar, Jaipur. 3. Smt. Manohar Kanwar W/o Raghuraj Singh, Aged about 72 years, R/ 53, Devi Path, Kanota Bagh, Takhteshahi Road, Police Station Gandhi Nagar, Jaipur. ……Petitioners Versus 1. State of Rajasthan through PP. 2. Smt. Renu Khidiya W/o Bhupendra Singh D/o Bhawani Singh, Aged about 30 years, By caste Charan, R/o 5/33, Vidhyadhar Nagar, Jaipur. ……Respondents 2. S.B.Criminal Revision Petition No.578/2015 Dr. Chetna Agarwal aged about 35 years wife of Shri Divakar Bansal, resident of near Nanak Store, Gol Building, Sardarpura, Jodhpur ……Petitioner Versus 1. State of Rajasthan through PP. …Non-petitioner 2. Smt. Renu Khidiya W/o Bhupendra Singh, D/o Bhawati Singh, Aged about 30 years, By caste Charan, R/o 5/33, Vidhyadhar Nagar, Jaipur. ..Complainant-Non-petitioner Mr.S.R.Surana, Sr. Advocate with Mr.Sanjay Yadav, for the petitioners in Revision Petition No.577/2015. Mr.Mukesh Kumar Saini for petitioner in Revision Petition No.578/2015. Mr.Prakash Thakuria,Public Prosecutor for State. Mr.Rakesh Chandel, for the respondents-complainant.
BY THE COURT:
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 of 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 withSection 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 offences 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.
(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 passed 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