RAVISHANKAR JAGANNATH PRASAD TIWARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner takes exception to the orders passed by the learned Judicial Magistrate First Class, Nagpur, allowing application Exhibit 36 before him and the order passed by the learned Additional sessions Judge, Nagpur, refusing to interfere with the said order in exercise of revisional jurisdiction.

(2.) Facts, in the context of which the petitioner has been compelled to file this petition, are as under: the petitioner was being prosecuted for an incident, which occurred on 1-1-1987. The petitioner is a driver of police vehicle. He was charge-sheeted for having been allegedly involved in offences punishable under sections 279, 337, 427 of the Penal Code and section 117 of the Motor Vehicles Act, 1939. Charge-sheet was sent to the learned Judicial Magistrate First Class in the year 1987 and was registered as Summary Criminal Case No. 1141 of 1987. Subsequently, upon transfer of the case from one Magistrate to the other, it came to be numbered as summary Criminal Case No. 225 of 2003. Evidence of eight witnesses was recorded and the accused was also examined under section 313 of the Code of criminal Procedure. The case was them adjourned for hearing arguments of the parties. At that stage, the learned Additional Public Prosecutor chose to file application Exhibit 36 requesting that charge of offence punishable under section 66 (1) (b) of the Bombay Prohibition Act and section 185 of the Motor Vehicles act, 1988 should also be framed against the accused in the interest of justice, since there was a certificate from the Chemical Analyzer that the petitioner had consumed alcohol at the relevant time. The application was opposed by the petitioner, who pointed out that the case had been adjourned on seventy two occasions for tendering evidence. Twelve adjournments were sought by the prosecutor for arguing the matter and then this application Exhibit 36 was filed. The learned Magistrate allowed the application holding that the fact that the case was fixed for argument is not a sufficient ground for rejecting the application. Aggrieved by this order, the petitioner preferred Criminal Revision bearing No. 1303 of 2005 before the Court of Session at Nagpur. It was pointed out to the learned 2nd Ad hoc Additional Sessions Judge, who heard the revision that though the charge-sheet for offences punishable under sections 279, 327, 427 of the Penal Code and section 117 of the Motor Vehicles Act, 1939 was filed, the learned Trial Magistrate had not framed any charge of offence punishable under section 117 of the Motor Vehicles; Act, 1939. The learned Additional Sessions judge found that the learned Magistrate was in error in referring to section 185 of the Motor Vehicles Act, 1988, instead of which the learned Magistrate should have referred to section 117 of the Motor Vehicles Act, 1939. Taking recourse to the provisions of section 216 of the Code of Criminal Procedure, the learned additional Sessions Judge held that any Court could alter any charge at any time before the judgment is pronounced and, therefore, proceeded to dismiss the revision.

(3.) I have heard the learned counsel for the petitioner and the learned additional Public Prosecutor for the State. It is not clear as to what prompted to the Prosecutor to seek addition of charge of offences punishable under section 66 (1) (b) of the Bombay Prohibition Act and section 117 (section 185) of the motor Vehicles Act eighteen years after the prosecution was launched. It is also equally not clear as to what prompted the learned Judicial Magistrate First Class to overlook the fact that this Court had not framed any charge of offence punishable under section 117 of the Motor Vehicles Act, implying that the Court was satisfied that there was no material for framing such charge. If the prosecution was aggrieved by the omission of the Magistrate to frame a charge, it could have taken the matter to appropriate forum or brought to the notice of the magistrate the omission before the trial commenced. The learned Additional sessions Judge also seems to have overlooked the import of the word "may" used in section 216 of the Code of Criminal Procedure. The use of the word "may" by the Legislature does not signify that a Court can alter or add to any charge merrily at any stage of trial without considering the propriety of doing so. In this case, the charge of offence punishable under section 66 (l) (b) of the Bombay prohibition Act or section 117 of the Motor Vehicles Act, for which imprisonment prescribed is less than one year, was sought to be added seventeen years after the incident. This amounts to persecution and not prosecution. Without showing any justification for making such application belatedly at the stage of addressing the final arguments, the learned Assistant Public Prosecutor invoked the powers of this court, and unfortunately without considering the necessity to put an end to an 18 year old case, the learned Magistrate merrily acceded to the request, disregarding the objections of the defence. He should have considered that after the entire trial was over, addition of such charge would have prejudiced to the defence. It is equally unfortunate that the learned Additional Sessions Judge failed to exercise the powers vested in him and refused to correct the error in learned Magistrate's acceding to such an improper request.