DEEPAK HADFADKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AT the outset of the hearing, Shri A. P. Lawande, the learned Public Prosecutor has fairly admitted that the learned Additional Sessions Judge has convicted the appellant under section 306 of Indian Penal Code as well as section 309 of the I. P. C. without there being any charge framed against the appellant in respect of offence punishable under section 309 I. P. C. Drawing my attention to para 41 of the impugned judgment of the trial Court in that regard, the learned Public Prosecutor submitted that the learned Additional Sessions Judge erred in relying upon section 222 of Criminal Procedure Code while holding that the offence punishable under section 309 of I. P. C. is a minor offence as compared to the offence punishable under section 306 of I. P. C. . The finding has been arrived at totally ignoring the facts and circumstances of the case. He further submitted that at the time when initially the charge was framed against the appellant section 309 of I. P. C. was not on the Statute Book in view of the decision of the Apex Court in the matter of (P. Rathinam Nagbhusan Patnaik v. Union of India and another), A. I. R. 1994 S. C. 1844. However, subsequently the said decision being overruled by the larger Bench of the Apex Court in the matter of (Smt. Gian Kaur v. State of Punjab), 1996 Cri. L. J. 1660 : A. I. R. 1996 S. C. 1257, it was necessary for the trial Court to frame the necessary charge against the appellant under section 309 of I. P. C. before holding him guilty of the offence punishable under the said section. He further submitted that in the facts and circumstances of the case, therefore, it is necessary to remand the matter to the Sessions Court with a direction to frame the charge under section 309 of I. P. C. and to give fresh opportunity to the parties to lead evidence in the matter and to decide the entire case afresh.

(2.) THE contention raised by the learned Public Prosecutor has been candidly conceded by Shri Menino Teles, the learned Advocate appearing for the appellant. He further submitted that it was the case of the appellant himself before the learned Additional Sessions Judge that he should be given fair opportunity to contest the charge under section 309 of I. P. C. before taking any decision in the matter and the learned Additional Sessions Judge erred in ignoring such plea on the part of the accused and holding him guilty without giving him fair opportunity to contest the same.

(3.) UPON hearing the learned Advocates and on perusal of the impugned judgment and particularly para 41 thereof, it is clear that the learned Additional Sessions Judge being fully conscious of the fact that the accused was not charged of the offence punishable under section 309 of I. P. C. held that in terms of section 222 Cr. P. C. if the facts are proved for major offence for which the accused has not been charged, then he can be convicted even for the minor offence although a charge for such minor offence has not been formally framed. Undisputedly, the charge in the instant case was framed on 18th November, 1994. On the said day, the law laid down by the Apex Court in P. Rathinam Nagbhusan Patnaiks case (supra), was in full force and, therefore, no fault can be found with the concerned Court in not framing the charge under section 309 I. P. C. against the appellant on the day the charge under section 306 of I. P. C. was framed against him. Moreover, there after, the larger Bench of the Apex Court overruled the decision in the said Patnaiks case and while deciding the matter in Smt. Gian Kaurs case (supra) held that section 309 of I. P. C. was not hit by Article 21 or Article 14 of the Constitution of India and , therefore, is perfectly valid. In view of this changed circumstances and the ruling of the Apex Court the matter of Smt. Gian Kaurs case (supra), considering the fact that the investigation papers prima facie disclose commission of the offence punishable under section 309 of I. P. C. by the appellant/ accused, it was necessary for the learned Additional Sessions Judge to frame the charge under section 309 of I. P. C. before the accused was held guilty of offence punishable under the said section.