STATE OF GUJARAT Vs. MAHMAD KASAM

JUDGEMENT

(1.) The opponents were charge-sheeted by the police in the Court of the Judicial Magistrate First Class Nadiad for an offence under sec. 302 read with sec. 34 of the Indian Penal Code on the allegation that they had formed common intention to cause the death of the deceased and in pursuance of such common intention opponent No. 1 had given an axe blow on the head of the deceased and thereby caused the death of the deceased. The learned Judicial Magistrate on a consideration of the police papers thought that the facts disclosed an offence under sec. 304 Part II and not under sec. 302 and he accordingly framed a charge under that section and committed the opponents to stand their trial before the Court of Session. When the case came up for hearing before the Additional Sessions Judge Nadiad an application was made on behalf of the prosecution that the charge framed by the learned Judicial Magistrate was erroneous and it should therefore be altered to one under sec. 302 against opponent No. 1 and sec. 302 read with sec. 34 against opponent No. 2 or in the alternative under sec. 302 against opponent No 1 and sec. 302 read with sec. 114 against opponent No. 2. The application was opposed by the opponents as the alteration of the charge would expose them to prosecution for a higher offence and the main ground of opposition was that acceding to the application of the prosecution would amount to quashing the charge framed by the learned Judicial Magistrate and framing a new charge for a distinct offence and that was not permissible to the Court of Session under the Code of Criminal Procedure but could be done only by the High Court in revision. The learned Additional Sessions Judge following the decision of Raju J. in Kantilal v. Prabodh Chandra (1964) 5 G.L.R. 606 accepted this contention of the opponents and rejected the application. Hence the present application by the State for revising the order of the learned Additional Sessions Judge.

(2.) Now it cannot be disputed that if the decision of Raju J. in Kantilal v. Prabodh Chandra (supra) is right the order made by the learned Additional Sessions Judge would have to be sustained but Mr. Vidhyarthi learned Assistant Government Pleader appearing on behalf of the State disputed the correctness of that decision and contended that that decision does not lay down the correct law and we must overrule it. He urged that that decision is not only contrary to the earlier decision of the Bombay High Court in Emperor v. Bhagwandas Tulsidas 47 Bombay Law Reporter 995 but is also contrary to the first two illustrations to sec. 226 of the Code of Criminal Procedure. Sec. 226 confers a very wide power on the Court of Session to frame a charge or add to or otherwise alter the charge and that power is conferred in the following terms:-

(3.) With the greatest respect to the learned Judge we find ourselves unable to agree with the view expressed by him in this decision. It is no doubt true that sec. 271 says that when the Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried; but the section nowhere says that the charge to be read out and explained to him and in respect of which his plea is to be taken is the charge as framed by the committing Magistrate. Sec. 226 in terms confers power on the Court of Session to add to or alter a charge where it is imperfect or erroneous and the Sessions Judge would not only be entitled but would be bound to add to or alter the charge at the commencement of the trial before taking the plea of the accused if he finds it to be imperfect or erroneous and it is the charge as added to or altered by the learned Sessions Judge that would be read out and explained to the accused and it is in respect of such charge that the plea of the accused would be taken. Having disposed of this aspect of the matter touched upon by the learned Judge we will proceed to consider what is the scope and ambit of the power to add to or alter the charge conferred by sec. 226. It is no doubt true that sec. 226 occurs in the fascicules of sections grouped together under the heading Form of charges but the heading cannot be allowed to control the interpretation of the section and where the meaning of the section on a plain natural construction of its words is clear such meaning must be given effect to despite the fact that it occurs in a group of sections under a particular heading. Sec. 226 says that where a person is committed with an imperfect or erroneous charge the Court of Session may add to or otherwise alter the charge. We are here leaving out the words frame a charge on the assumption that those words may be applicable only where a person is committed for trial without a charge though we are not at all sure about the correctness of such assumption. But the power to add to or otherwise alter the charge can be exercised by the Court of Session in all cases where the charge is imperfect or erroneous. Now there is nothing in the section, which limits this power of the Court of Session to those cases only where the imperfection or error in the charge is in regard to the form of the charge. If the charge is deficient in complying with the requirements as to form set out in the various sections occurring under the heading Form of charges the charge would be defective or to use the language of the section imperfect but the Legislature has also used another word namely erroneous to denote the class of cases where the power to add to or alter the charge can be exercised by the Court of Session. The word erroneous is not used to denote the same idea as the word imperfect. If the charge is defective in form it would be imperfect but it would not be correct to say that it is erroneous. The word erroneous clearly suggests that the charge is wrong instead of a charge for offence A the charge is for offence B. That is the error in the charge, which is contemplated by the Legislature. And this intention of the Legislature is made sufficiently clear by Illustrations 1 and 2. These two Illustrations show beyond doubt that the error in the charge referred to in the section is not merely an error in form and the power to add to or alter the charge is not confined only to cases where there is an error in the form of the charge but extends to cases where the Sessions Judge finds on a consideration of the papers that the charge is erroneous in that it should be not for offence A as framed by the Judicial Magistrate but for offence B or that it should be not only for offence A but also for offence B. This view, which we are inclined to take on a bare reading of sec. 226, is reinforced by secs. 229 and 230 which clearly postulate that the altered or added charge may be for a distinct offence other than that for which the Judicial Magistrate had committed the accused. Sec. 229 provides that if the new or altered or added charge is such that proceeding immediately with the trial is likely in the opinion of the Court to prejudice accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary and under sec. 230 if it is found that the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary the case is not to be proceeded with until such sanction is obtained unless sanction has already been obtained for a prosecution on the same facts as those on which the new or altered charge is founded. These two sections clearly indicate that the power to add to or alter the charge contemplated by sec. 226 is not confined merely to addition or alteration of the charge for the purpose of bringing it in proper form but also includes addition or alteration for the purpose of introducing a charge for a distinct offence other than that for which the accused was charged by the Judicial Magistrate. The principle behind the section is that the Sessions Judge is not bound by the charge as framed by the Judicial Magistrate committing the accused but if on the record which was before the Judicial Magistrate the Sessions 3 finds that the charge is imperfect or erroneous he can frame a new charge or add to the charge or alter the charge by introducing a charge for a distinct offence. It is undoubtedly true that in a sense alteration of the charge from one offence 1o another would involve in the process extinction of the charge for the old offence and framing of a charge for the new offence but that power is expressly conferred on the Court of Session under sec. 226 if the conditions set out in the section are satisfied and we do not therefore see why we should refuse to concede such power to the Court of Session merely on the ground that the effect of recognising such power would be to empower the Court of Session to quash the charge. The Court of Session indubitably cannot quash the charge when the accused is committed to it for trial but it can certainly frame a new charge or add to or otherwise alter the charge as provided expressly in sec. 226. This view, which we are taking, is fortified by the decision in Emperor v. Bhagwandas Tulsidas (supra) to which we have already made a reference. Lokur J. held in that case which was a case of committal to the High Court that on a committal on a charge against accused No. 2 of murder under sec. 302 of the Indian Penal Code and a charge against accused Nos. 1 and 4 under sec. 323 and 109 of the Indian Penal Code it is competent to the Clerk of the Crown under sec. 226 of the Code of Criminal Procedure to alter the second charge into one under secs. 302 and 109 of the Indian Penal Code for aiding and abetting accused No. 2 in the murder. The power to add to or alter the charge conferred by sec. 226 was interpreted in this decision in the same manner in which we are inclined to interpret it.