Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 27TH DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 CRL.MC NO. 131 OF 2024 CRIME NO.1133/2011 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM
AGAINST CC NO.223 OF 2017 OF CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM/ SPECIAL COURT FOR TRIAL OF CYBER CRIME AGAINST CRRP 16/2022 OF ADDITIONAL DISTRICT COURT (ADHOC)- II, THIRUVANANTHAPURAM PETITIONER/CRL.REVISION PETITIONER (ACCUSED): JOHNKUTTY.M.V. AGED 59 YEARS T.C.25/4243(1),VIKAS BHAVAN POST OFFICE,THIRUVANANTHAPURAM, KERALA, PIN - 695033 BY SRI.JOHNKUTTY.M.V.(Party-In-Person) RESPONDENT/COUNTER CRL.REVISION PETITIONER/DEFACTO COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HOME SECRETARY, GOVT. SECRETARIATE, STATUE, THIRUVANANTHAPURAM, KERALA, PIN - 695001
SRI. M.C. ASHI, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON 27.02.2024 PASSED THE FOLLOWING: Crl.M.C. No.131/24 -:2:- “C.R.”
BECHU KURIAN THOMAS, J.
-------------------------------- Crl.M.C. No.131 of 2024 --------------------------------- Dated this the 27th day of February, 2024
ORDER
Petitioner has combined various reliefs, of which the relevant one is to set aside Annexure A15 order dated 23.03.2022 framing charge against him for the offences punishable under sections 341 and 332 of the Indian Penal Code, 1860 (for short 'IPC'). Annexure A20 and Annexure A21
orders dated 27.11.2023 of the Additional Sessions Court-II, Thiruvananthapuram, are also challenged. By virtue of those two orders, the Court has dismissed petitioner's application for referring questions to the High Court under section 395 Cr.P.C and also rejected petitioner's challenge against the order framing charge as well as the challenge against the orders in two petitions filed as C.M.P. Nos.602/2022 and
2. The dispute arises out of an incident that occurred on 28.11.2011 at the Museum Junction at Thiruvananthapuram. Petitioner is alleged to have blocked a KSRTC stage carriage on the main road at around 7:50 Crl.M.C. No.131/24 -:3:- PM using his car and attacked the driver of the stage carriage. A final report was filed alleging offences punishable under sections 341, 353 and 323 of IPC.
3. The case has a history which is worth mentioning to indicate how
a trial has been prolonged for a decade and more. Initially, on 07.02.2012, the Judicial First Class Magistrate Court -III, Thiruvananthapuram, took cognizance of the offences mentioned in the final report, i.e. for those under sections 341, 353 and 323 of IPC and issued process to the accused. After the accused appeared, the learned Magistrate on 27.08.2014 framed charges for the offences under sections 341 and 332 of IPC and the trial commenced. Later, consequent to examination of the defence witnesses, the learned Magistrate realized that it was not a case triable by him.
4. Thereafter, the Chief Judicial Magistrate withdrew the case to
itself on 17.01.2017. Later, the accused filed C.M.P. No. 846/2017, seeking to discharge him. The said petition was dismissed, against which a revision was preferred before the Sessions Court, and by order dated 19.06.2017, the Sessions Court remanded the matter. While the question of discharge was pending consideration before the Chief Judicial Magistrate after remand from the Sessions Court, petitioner filed a revision petition as Crl.R.P. No.36 of 2018 challenging the order of the Chief Judicial Magistrate withdrawing the case from the Magistrate’s Court. The
Crl.M.C. No.131/24 -:4:- said revision petition was also dismissed.
5. In the meantime, the accused filed Crl.M.C. No.838 of 2019 to
quash the proceedings, which ended in dismissal, against which he approached the Supreme Court in SLP No.4344/2019, which also ended in dismissal. Petitioner then filed a review petition before the Supreme Court as R.P. No.417/2019, which was also dismissed. After all the above proceedings, petitioner filed C.M.P. No.2680/2019 before the Chief Judicial Magistrate's Court, challenging his competence to try the offence. The said petition was also dismissed by order dated 28.09.2019. The petitioner preferred another revision before the Sessions Court, and by order dated 18.01.2020, the said revision was dismissed with a cost of Rs.25,000/-. Though petitioner’s challenge against the above-noted order was dismissed in W.P.(C) No.194 of 2022, the cost imposed by the Sessions Court was interfered with.
6. Till this period, C.M.P. No.846/2017 seeking discharge could not
be considered by the Chief Judicial Magistrate after remand from the Sessions Court. Thereafter, on 01.02.2022, the petition for discharge was dismissed and the charge was framed for the offences under sections 341 and 332 of IPC. Petitioner pleaded not guilty to the offences on 23.02.2022. Soon thereafter, petitioner filed C.M.P. No. 602/2022 before the Chief Judicial Magistrate to review the order framing charge. Petitioner also filed C.M.P. No.603/2022 to refer three questions of law to Crl.M.C. No.131/24 -:5:- the High Court under section 395 Cr.P.C. Both petitions were dismissed by
order dated 13.04.2022. Challenging the order framing the charge and the
orders dismissing the petition to review the said order and refusing to refer the questions of law to the High Court, a revision petition was filed by the petitioner as Crl.R.P. No.16/2022. The learned Sessions Judge dismissed the application by the impugned order Annexure A21.
7. Sri. Johnkutty M.V., the petitioner, appeared and argued as a party in person. The petitioner argued that since cognizance was taken initially for the offences under sections 341, 353 and 323 of the IPC,
charge could have been framed only for those offences, and the order
framing charge for the offences under sections 341 and 332 IPC by the Chief Judicial Magistrate, even before taking evidence, is contrary to law and illegal. It was also submitted that cognizance of the offences was taken by the Judicial Magistrate of the First Class on the basis of the materials available in the final report, but after the case was withdrawn, there were no further materials before the court to take a different view to frame the charge for offences, for which cognizance was not taken. According to the petitioner, taking of cognizance is a judicial act and framing a charge for different offences without any new material on record amounts to a review of the order taking cognizance. It was contended that the Chief Judicial Magistrate erred in framing the charge for offences that were different from those for which the cognizance was taken.
Crl.M.C. No.131/24 -:6:-
8. Sri.M.C.Ashi, the learned Public Prosecutor, submitted that the
contentions raised by the petitioner are without any basis and that it is a settled proposition of law that the court can, at any point, add or alter the charge. It was also submitted that the order taking cognizance of certain offences should not be a restraint on the court while framing the charge for other offences, even if the final report submitted to the court had different offences. The learned Prosecutor also submitted that for the last 13 years, the petitioner had successfully avoided the trial, and even after the case was withdrawn, petitions after petitions were being filed to delay the trial.
9. I have considered the rival contentions.
10. The pleadings in this case are drafted without clarity and are
quite ambiguous. Still, it is understood that petitioner is agitating the question of whether, after taking cognizance of a particular offence, the court can frame a charge for different offences, even before the commencement of trial.
11. A charge is a written document containing the precise
allegation and description of the offence which the court finds, from the materials produced before it, to have been allegedly committed by the accused. The purpose of a charge is to inform the accused what he is going to be tried for and to enable him to defend himself. Framing of a proper charge is vital in a criminal trial, and for that purpose, the Magistrate must bestow his careful attention to the materials in the final
Crl.M.C. No.131/24 -:7:- report. While framing a charge, the Magistrate is not restricted by the offences stated in the final report but by the materials produced before it.
12. When a Magistrate takes cognizance of the offence under
section 190 Cr.P.C, though there is certainly an application of mind, it is only for the purpose of issuing process against the accused for the offences alleged. After the accused appears, and at the time of framing of charge either under section 228 Cr.P.C, by the Sessions Court, or under section 240 Cr.P.C, by the Magistrate, the Court would be going through the prosecution papers once again and can even hear the accused. If, at that point in time, it is felt that other offences are also made out or a different offence is made out from the records, the court cannot ignore it on the technical aspect that cognizance had not been taken for those offences.
13. Nowhere in the Code is there any provision that restricts the
power of the Court to frame charges for any offence, provided that the offence is made out from the records gathered by the prosecution. The terminology used in section 228 and section 240 Cr.P.C is “if the court is of the opinion that there is ground for presuming that the accused has committed an offence” and not “the accused has committed an offence mentioned in the final report”. This distinction is significant and reflects the unfettered power of the court to frame charges for any of the offence made out from the records. Such power can be utilized to frame charges not only
Crl.M.C. No.131/24 -:8:-
for those offences mentioned in the final report but also for offences not referred to in the final report. The conferment of such power is essential for the administration of criminal justice, as otherwise, the investigating officer will be the sole repository of the power to determine what offences must be charged against an accused.
14. In this context, reference to section 216 Cr.P.C.which enables a
court to alter or add to any charge at any time before judgment is pronounced, is also relevant. The power to add or alter a charge is also a comprehensive power. An improper or erroneous charge can also be corrected under section 216 Cr.P.C. by reframing it properly.
15. In the decision in Anand Prakash Sinha @ Anand Sinha v.
State of Haryana (2016) 6 SCC 105, it was observed that if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge or even 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. The Court went on to hold that under section .216 Cr.P.C the charges already framed can be altered even before evidence has been let in.
16. Further in the decision in Central Bureau of Investigation v. Karimullah Osan Khan (2014) 11 SCC 538 it was observed that section 216 Cr.P.C. gives considerable power to the trial court, that is, even after Crl.M.C. No.131/24 -:9:-
the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. It was further held that the expressions' ‘at anytime’ and ‘before the judgment is pronounced’ would indicate that the power is very wide and can be exercised in appropriate cases, in the interest of justice, but at the same time, the court should also see that its orders would not cause any prejudice to the accused.
17. It is also relevant to refer to the judgment in P.Kartikalakshmi
v. Sri.Ganesh and Another (2017) 3 SCC 347 wherein this question came up for consideration, and the court held that the power under section 216 is vested exclusively on the court and it is an enabling provision to exercise power under contingencies which comes to its knowledge.
18. Thus, it is evident that the power of the court to alter or add any
charge is unlimited and unrestrained, which can be done at any time before the judgment is pronounced. When there are materials available before the court to frame a charge or add or alter the charge for different offences other than those for which cognizance was taken, the court is not only entitled but is bound to do so.
19. The contention of the petitioner that once cognizance of an offence has been taken, the court cannot frame the charge for a different offence before evidence is taken, is legally untenable.
20. In a recent decision of the Allahabad High Court in Rajkumar v. Crl.M.C. No.131/24 -:10:-
State of U.P. and Another 2023 AHC 210106, it was observed that there are four stages in a criminal proceeding, stage of taking cognizance, the stage of framing of charge, the stage of evidence and the stage of judgment. As the case proceeds from the stage of cognizance to the stage of framing of charge and onwards, the proceedings begin to take shape, the loose ends are tightened, and the approach becomes more and more penetrative. Hence at the time of framing of charge, the court considers more elaborately and delves deeper into the prosecution records. At such a stage of the proceedings, the court's hands cannot be tied with the order taking cognizance as that can affect the fair trial of the case. I am in agreement with the observations in the above judgment.
Since the order framing charge has been carried out in accordance with law, the impugned orders need no interference. Hence there is no merit in this criminal miscellaneous case, and it is dismissed.
Sd/- BECHU KURIAN THOMAS JUDGE vps Crl.M.C. No.131/24 -:11:- APPENDIX PETITIONER ANNEXURES Annexure-A1 THE PHOTO COPY OF THE FIR REGISTRATION RECEIPT ISSUED, DATED 28.11.2011, BY THE MUSEUM POLICE STATION Annexure-A2 THE PHOTOCOPY OF THE CHARGE SHEET IN CRIME NO.1133/2011, DATED 26.01.2012 Annexure-A3 THE COPY OF THE FINAL REPORT IN CRIME NO. 1134/2011 DATED 19/03/2012
Annexure-A4 COPY OF THE “B" DIARY PROCEEDINGS OF CC
Annexure-A5 PHOTOCOPY OF THE ORDER DATED 17/01/2017,
NO.C.309/2017 ISSUED BY HON. CJM,THIRUVANANTHAPURAM Annexure-A6 COPY OF THE ORDER DATED: 4/01/2017 IN COPY APPLICATION NO. CF 4855 (FILED ON 28.12.2016) ISSUED BY HON. JFMC-III. Annexure-A7 COPY OF THE ORDER BY HON. SESSIONS COURT-I, TVPM, IN CRIMINAL REVISION PETITION NO.35/2017, DATED 19/12/2017. Annexure-A8 THE COPY OF THE PRAYER PORTION OF THE CRIMINAL REVISION PETITION 36/2018, FILED BEFORE PRINCIPLE SESSIONS COURT-1, TVPM DATED 4/10/2018 Annexure-A9 THE COPY OF THE ORDER DATED, 18/01/2018, IN CRIMINAL REVISION PETITION NO. COURT-II Annexure-A10 THE PHOTOCOPY OF THE ORDER BY HON.
KERALA HIGH COURT, DATED 15.3.2019 IN CRL.M.C. NO.838/19 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-A10.
Annexure-A11 THE WEB COPY OF THE COURT PROCEEDINGS IN CRIMINAL MC 838/2019, DATED 29.01.2022 Crl.M.C. No.131/24 -:12:- Annexure-A12 THE PHOTOCOPY OF THE ORDER BY HON. APEX COURT, DATED 10.5.2019, IN SPECIAL LEAVE PETITION (CRL) NO.4344/2019 Annexure-A13 COPY OF THE ORDER IN WRIT PETITION CRIMINAL 194/2022, DATED 25.2.2022 Annexure-A14 COPY OF THE ORDER, DATED 05/04/2022, IN REVIEW PETITION 352/2022 IN WRIT PETITION CRIMINAL 194/2022 Annexure-A15 COPY OF THE ORDER, DATED 23/03/2022, "COURT CHARGE" IN CC 223/2017 Annexure-A16 COPY OF THE CRIMINAL REVISION PETITION NO.16/2022, DATED 20/04/2022 Annexure-A17 COPY OF THE "B" DIARY PROCEEDINGS OF CRIMINAL REVISION PETITION NO.16/2022, DATED 20/04/2022 Annexure-A18 COPY OF THE ORDER IN SLP (CR) DIARY NO. Annexure-A19 COPY OF THE CMP NO.4416/2023 IN CRL.RP THE HON. ADDITIONAL SESSIONS COURT-II Annexure-A20 COPY OF THE ORDER IN CMP NO.4416/2023 IN CRL.RP 16/2022, DATED 27.11.2023, FILED BEFORE THE HON. ADDITIONAL SESSIONS COURT-II, Annexure-A21 COPY OF THE FINAL ORDER IN CRL.RP.NO ADDITIONAL SESSIONS COURT-II.