ARVINDA Vs. RAVINDRA SINGH

JUDGEMENT

(1.) THESE two revisions are by P. W. 1 in C. C. No. 3917 of 1978 on the file of the Fourth Metropolitan Magistrate, Madras. The first respondent is the accused in the said case. The court below framed a charge under S. 326, I. P. C. and since the accused pleaded not guilty to the said charge, proceeded to take evidence on behalf of the prosecution. P. W. 1 was examined on the side of the prosecution. Before the other witnesses could be examined, the court below deemed fit to alter the change under Section 326, I. P. C. into one under S. 224, I. P. C. and the altered charge was read and explained to the accused. At this stage, the accused filed a petition voluntarily admitting the offence and on the basis of this petition, the court below found the accused guilty not only under S. 324, I. P. C. , but also under S. 341, I. P. C. for which no charge was either initially framed or subsequently added. Taking into consideration certain factors pleaded by the accused, the court below sentenced him to pay a fine of Rs. 50; in default to undergo rigorous imprisonment for two weeks under S. 324, I. P. C. and to a fine of Rs. 25, in default, to undergo rigorous imprisonment for two weeks under S. 341, I. P. C.

(2.) CRIMINAL Revision Case No. 670 of 1979 is preferred pleading for enhancement of the sentence and Criminal Revision Case No. 199 of 1980 has been filed questioning the propriety of altering the charge from one under S. 326, I. P. C. into one under S. 324, I. P. C. and thereby impliedly acquitting the accused of the offence under S. 326, I. P. C.

(3.) I am clearly of the opinion that the judgment of the court below cannot be sustained for more than one reason. The court below framed a charge under S. 326, I. P. C. read over and explained the same to the accused in Tamil under S. 240 (2), Cr. P. C. and the accused had the opportunity either to plead guilty or not to plead guilty to the said charge. If the accused had pleaded guilty to the charge, then the court below would have exercised the powers under S. 241, Cr. P. C. and convicted him on his plea of guilt. In the present case, the accused refused to plead guilty and hence the case has proceeded in accordance with Section 242, Cr. P. C. It is true the Court has got the power to alter or add to the charge already framed under S. 216, Cr. P. C. There is no indication that the Court wanted to exercise the powers, and in fact, exercised the powers under Section 216 (4), Cr. P. C. with reference to directing a new trial so that it can be stated that a fresh contingency for resorting to Section 240 (2), Cr. P. C. had arisen. This is also not a case where the court has exercised the powers under S. 313, Cr. P. C. which enables the court to question the accused at any stage or to question him after the witnesses for the prosecution have been examined and before he is called on for his defence. In the instant case, the accused has chosen to put in a petition voluntarily admitting the offence under S. 324, I. P. C. after the charge has been altered. It is not possible to spell out any such power for the court to accept such a statement at that stage from the accused and pass orders of conviction and sentence on the plea of the accused. In a case arising under S. 243, Cr. P. C. , Venkataraman, J. in Kuppuswami in re. 1967 Mad LW Cri 1 : (1968 Cri LJ 416), discountenanced such a procedure and found a warrant for setting aside the conviction and sentence and directing a retrial. The ratio adopted by the learned Judge applies with equal force to the facts of the present case. The judgment of the court below, for the reasons set out above, cannot be sustained and has got to be set aside. Accordingly these two revisions are allowed and the judgment of the court below is set aside and the matter will stand remitted back to the file of the court below, for it to proceed on with the examination the prosecution and disposal of the case in accordance with law.