1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.09.2011 CORAM: THE HONOURABLE MR.JUSTICE M.M.SUNDRESH CRL.OP(MD).No.11823 of 2011 Chellapandi : Petitioner/Accused Vs. 1.The Deputy Superintendent of Police, C.B.C.I.D., Madurai City, Madurai District. 2.The Inspector of Police, Manamadurai Police Station, Manamadurai, Sivagangai District. (Crime No.523 of 2007). 3.Pandi. : Respondents/Complainants & Defacto Complainant PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure to set aside the order passed in S.C.No.91 of 2008, on the file of the District and Sessions Court, Sivagangai, for adding additional charge of the offence under Section 302 IPC in S.C.No.91 of 2008, dated 04.08.2011. For Petitioner : Mr.V.Kannan For Respondents 1&2 : Mr.V.Rajarajan Government Advocate (Crl.Side). For Respondent 3 : Mr.D.Shanmugaraja Sethupathi O R D E R The petitioner herein is an accused in S.C.No.91 of 2008, on the file of the District and Sessions Court, Sivagangai. Charges were framed against the petitioner for the alleged offences punishable under Sections 306, 498(A) and 304(B) IPC, thereby the Trial Court, in view of a circular dated 18.05.2011, issued by the Registry of this Court, in pursuant to a Judgment passed by the Hon'ble Supreme Court in Rajbir @ Raju & Another v. State of Haryana reported in AIR 2011 SC 568, has altered the charges by including the alleged offence punishable under Section 302 IPC. Challenging the said order, the present Criminal Original Petition has been filed. 2. The learned counsel for the petitioner submitted that a perusal of a copy of the complaint and charge sheet, which have been taken on record, would amply disclose the fact that the alleged offence punishable under Section 302 IPC has not been made out. The learned counsel further submitted that while exercising power under Section 216 of the Code of Criminal https://hcservices.ecourts.gov.in/hcservices/ 2 Procedure towards addition or alteration of the charges during trial, the Court will have to be satisfied with the materials available on record. The learned counsel also submitted that the said Judgment of the Hon'ble Apex Court cannot be applied like a statute and has to be applied on the facts of the case, and hence, the order passed by the learned District and Sessions Judge, Sivagangai, in adding alleged offence punishable under Section 302 IPC will have to be set aside. 3. Per contra, the learned counsel appearing for the third respondent submitted that by taking note of the continuation of the offences against women, the Hon'ble Supreme Court has issued a direction to the Trial Courts throughout the Country to add Section 302 IPC to the charge of Section 304(B) so that death sentence can be imposed. Since the offence against women is heinous and barbaric, such direction issued by the Trial Court, as per the Judgment of the Hon'ble Supreme Court in exercise of Article 142 of the Constitution of India, does not warrant any interference. 4. I have considered the above rival submissions made by the respective learned counsel and perused the records carefully. 5. There is no dispute on facts. A perusal of the complaint as well as the charge sheet filed would clearly disclose that the materials available on record would constitute the alleged offences punishable under Sections 306, 498(A) and 304(B) IPC alone. When there is no material whatsoever, the Trial Court ought not to have ordered the offence coming under Section 302 IPC. It is trite law that a charge could be framed only with an alleged offence. When there is absolutely no material available on record to hold that the petitioner has committed the murder warranting punishment under Section 302 IPC, the alteration of the charges by the Trial Court is totally unwarranted. 6. Section 216 of the Code of Criminal Procedure clearly stipulates the power of a Court towards altering or addition to any charge at any time before the Judgment is pronounced. It also mandates that before altering the same, the proposed decision will have to be read out and informed to the accused. Such an action will have to be done by the Trial Court on a consideration of the materials available on record both oral and documentary. Therefore, while exercising power under Section 216 of the Code of Criminal Procedure, there has to be material available on record and the Trial Court has to satisfy with such materials so as to warrant the required alteration. Considering the scope of Section 216 of the Code of Criminal Procedure, the Hon'ble Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat reported in 2004 (5) SCC 347 has held as follows:- "8. Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Session and trial of warrant cases by Magistrates respectively. There is a scope of alteration of the charge during trial on the basis of materials brought on record. https://hcservices.ecourts.gov.in/hcservices/ 3 Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused. 9. In Kantilal Chandulal Mehta v. State of Maharashtra1 it was held that the Code gives ample power to the courts to alter or amend a charge whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him. Section 217 deals with recall, if necessary of witnesses when the charge is altered. 10. Therefore, if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate." It has been further held in T.J.Edward v. C.A.Victor Immanuel reported in 2002 (Crl) LJ 1670, which is as follows:- "......The legal position is also that a new charge can be added only if there are material before Court either in the Complaint or in the evidence to justify such action. For justifying altertation of charge also there should be material either in the Complaint or in the evidence. The learned Sessions Judge held that the question of altering charge arises only when the charge is framed and as the offence alleged to be committed is punishable under Section 138 of the Act (offence is triable as a summons case) no charge need be framed (only particulars of the offence of which revision petitioner is accused need be stated to him) and therefore, no question of framing additional charge as prayed for by the revision petitioner. Even treating the Application moved by revision petitioner as one filed under Section 217, Cr.P.C to frame a new charge under Section 420, IPC there is no material either in the Complaint or in the evidence to frame such a charge. It may also be pointed out here that Application for alteration of the charge should be made immediately after the charge been read out and explained by Magistrate (See Sohoni's Code of Criminal Procedure, 1973, 19th Edn., Vol.3, page 2514). As there is no material to hold that a prima facie case against the respondent exists to frame https://hcservices.ecourts.gov.in/hcservices/ 4 charge against him for commission of offence punishable under Section 429 IPC, no charge can be framed against the respondent under Section 420 IPC." The Hon'ble Supreme Court in Lak Ram v. Nihal Singh reported in 2006 (2) MLJ (Crl) 173 in Paragraph Nos.7 and 8 has held as follows:- 7...... The Trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence...... 8. The word "evidence" in Section 318 contemplates that evidence of witnesses given in the Court......" This Court, following the above Judgments, in Eswaramoorthy V.R.v. Suriya Charkra Spinning Mills Pvt., Ltd., reported in 2007 (5) CTC 473, has held as follows:- "6. I have carefully considered the submissions made by the learned counsel on either side. A close reading of the decisions relied upon by the learned counsel on either side makes it abundantly clear that the law governing the trial on criminal Offence provides for alteration of charges at any stage of proceedings depending upon the evidence adduced in the case. As observed by the Apex Court the word "evidence" in Section 319, Cr.P.C contemplates "evidence of witnesses given in the Court". The Trial Court can alter or add a charge only on the basis of evidence adduced before it and not on the basis of any other material which do not constitute evidence. If there is any material either in the complaint or in the evidence adduced during the course of trial, it is open to the Trial Court to frame a new charge. As per Section 3 of the Evidence Act, the word "evidence" would mean the statements made before the Court by the witnesses and documents produced for the inspection of the Court and they are called oral evidence and documentary evidence respectively." 7. On a careful consideration of the above ratio laid down and in the light of the discussion made above, this Court is of the considered view that the Court below has not exercised the power under Section 216 of the Code of Criminal Procedure in the manner known to law, as there is absolutely no material available on record to add the charge punishable under Section 302 IPC. 8. It is settled law that a Judgment cannot be read like a statute. The Hon'ble Supreme Court has rendered the above Judgment by taking into consideration of the facts involved therein. The Hon'ble Supreme Court, while issuing such direction, has held that the Trial Court shall ordinarily add https://hcservices.ecourts.gov.in/hcservices/ 5 the charge punishable under Section 302 IPC to the charge of Section 304(B) IPC. The word "ordinarily" will have to be interpreted in consonance with the exercise of power under Section 216 of the Code of Criminal Procedure. Therefore, the said pronouncement of the Hon'ble Supreme Court cannot be read like a statute or an enactment to apply to all the cases in which charges have been framed for the alleged offence punishable under Section 304(B) IPC. 9. As discussed above, this Court does not find any iota of material for altering the charges for the alleged offence punishable under Section 302 IPC. Accordingly, the order of the learned District and Sessions Judge, Sivagangai, dated 04.08.2011 made in S.C.No.91 of 2008 is hereby set aside and this Criminal Original Petition stands allowed. It is made clear that the (*) District & Sessions Judge,Sivagangai shall decide the case in S.C.No.91 of 2008, on its own merits without being influenced by the order of this Court, as it pertains to addition of the charges for the alleged offence punishable under section 302 IPC alone. The learned District and Sessions Judge, Sivagangai, is further directed to proceed with the charges framed against the petitioner for the alleged offences punishable under Sections 306, 498(A) and 304(B) IPC. (*) The District & Sessions Judge, Sivagangai is directed to expedite the matter as the case is pending from 2009. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(CO) (*)Amended as per the order of this Court dated 14.08.2012 and made herein. /True Copy/ Sub-Assistant Registrar To (*)To be substituted for the order already despatched on 13.10.2011 1.The District and Sessions Court, Sivagangai. 2.The Deputy Superintendent of Police, C.B.C.I.D., Madurai City, Madurai District. 3.The Inspector of Police, Manamadurai Police Station, Manamadurai, Sivagangai District 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +One Cc to Mr.D.Shanmugaraja Sethupathi, Advocate, SR.No.26789. +One Cc to Mr.V.Kannan, Advocate, SR.No.34605 NB rl/7c – 12.10.2011 ORDER MADE IN CRL.O.P.(MD).No.11823 of 2011 30.09.2011 PJR:17.08.12:5p/7c:(IT) 14.08.2012 https://hcservices.ecourts.gov.in/hcservices/