RALLABANDI MUTHIAH Vs. STATE

JUDGEMENT

(1.) These are two Revision Petitions, one is directed against the order in M.P. No. 87 of 1966, dated 6th August, 1966, passed by the Sessions Judge, Karimnagar, whereby he directed that the summonses of the defence witnesses may be handed over for service to the representative of the accused on his responsibility. The other is against the charge under section 302 read with section 34, Indian Penal Code, framed by the learned Sessions Judge instead of the charge under section 323 Indian Penal Code for which the accued was committed. The learned Counsel for the petitioner, Mr. Shanker Pershad Dubey calls in question the legality and propriety of both the orders on the ground that the Sessions Judge had no power to drop the charge framed by the committing Magistrate and frame a fresh charge against the accused immediately after commitment, and that when the accused was entitled to seek the assistance of the Court for calling his witnesses, he could not be denied the process of the Court on the basis that the list of witnesses was not filed earlier ; specially so when he had to meet a charge on a fresh count for which he could not name the witnesses earlier. Before 1 proceed to consider the merits in these contentions, I should notice the facts which are in a narrow compass. One Lachi, ageed 8, the daughter of the deceased Yennupu Reddi Venkayya took her cattle for grazing to one of the fields in the village. Some of the cattle strayed into the field of the first accused and damaged his crop. A-1i who was present in the field, rebuked the girl and beat her. The girl went and complained to her father, the deceased, who was also grazing cattle in a field nearby. Some time thereafter, at about 11-00 A.M. the deceased along with his daughter, Lachi, went to the house of the first accused who was taking his food inside. His brother, A.-2 was found outside. He sounded him first, and exchange of words followed. Then the quarrel started between the two. A-2 gave a slap to the deceased. Thereupon the deceased tried to pull out a stick from the 'dadi' that was there. A-2 at once caught hold of him. Meanwhile A-1 came out Then A-3 held fast the deceased and A-1 pulled a meddi koyya from the same 'dadi' and aimed it on his head. The deceased at once fell unconscious. He was removed to the Police Station and then to the hospital at Mahadevapur. His condition was serious. He was advisedly removed to the Hanamkonda Hospital.

(2.) Before he could reach the hospital he breathed his last in the course of journey. The police after investigation filed P.R.C. No. 1 of 1966 oefore the Munsif-Magistrate, Manthani. Three witnesses were examined including the daughter of the deceased. The learned Munsif-Magistrate committed both the accused to the Sessions Court. He framed a charge against A-1 under section 302, Indian Penal Code for he was of the view that section 34, Indian Penal Code, may not be attracted by the facts and circumstances of the case. On 1st August, 1966, when the matter came up before the Sessions Judge for trial, the accused prayed for a short adjournment. That was allowed on 4th August, 1966. The learned Sessions Judge after going through the evidence already recorded by the Magistrate came to the conclusion that the charge as framed was erroneous, for A-2 should have been charged under section 302 read with section 34, Indian Penal Code, Accordingly, he framed the charge and read it out to the accused. Then the trial was started on that very day. Altogether to witnesses were examined on that and the following day. On 5th August, 1966, in all three petitions were filed on behalf of the accused. In one his applications purporting to be made under section 229 Criminal Procedure Code, A-2 requested the Court that in view of the altered charge, he may be given sufficient opportunity to meet the same. We are not however concerned with this application as no revision is filed against the order passed thereon. Of the two other applications which were respectively filed under section 211 (2) and section 540, Criminal Procedure Code, we are concerned only with the first mentioned petition which is M.P. No. 87 of 1966. The learned Sessions Judge found that section 207 (9) must be the appropriate section under which the application should be deemed to have been filed. He then held that the accused ought to have filed his list of witnesses long ago either in the Court of the committing Magistrate or at any time before the trial had started. He said that the accused were committed six months back and an application was filed for the first, time on 5th August, 1966, and that in those circumstances, if at all, any opportunity has to be given to him after such lapse of time it is only at the risk and responsibility of the accused. He directed therefore that the summons of the defence witnesses may be handed over to the accused or the lawyer and the case may be posted two days thereafter on 8th August, 1966.

(3.) It is this order that the accused make grievance of on the ground that neither the time allowed is sufficient nor the assistance of the Court for enforcing the attendance of the defence witnesses could be thus denied to them. Criminal Revision case No. 785 of 1966 has been filed in this behalf. It the other Revision Petition (Crl. R.C. No. 478 of 1966) A-2 contends that when the committing Magistrate had framed a charge for an offence under section 323 only, the Sessions Judge could not have dropped that charge and framed a fresh charge for an offence under section 302 read with section 34, Indian Penal Code. It is contended that the Sessions Judge had no jurisdiction at all to do so for that is tantamount to indirectly quashing the order of commitment on a particular charge which was exclusively within the competence of the High Court under section 215, Criminal Procedure Code. So far as Criminal Revision Case No. 785 of 1966 is concerned, Mr. Chinnappa Reddi, the learned Public Prosecutor has fairly conceded that the accused ought to have been given full opportunity and assistance of the Court for calling the witnesses for the defence. This was all the more necessary as a new charge had been framed. Then as regards the relevant section under which the order ought to have been made he says it is only section 231, Criminal Procedure Code, and not section 207 (9) or section 211 (2), Criminal Procedure Code. I agree with the contention of the learned Counsel for the accused that the learned Sessions Judge ought to have made available to the accused the due assistance of the Court in enforcing attendance of their witnesses and should not have handed over the summonses to them on their responsibility. The impugned order passed in M.P. No. 87 of 1966 is therefore liable to be set aside, and is hereby set aside. The trial Court is accordingly directed to make the process of the Court available to the accused in calling defence witnesses, or enforcing their attendance. Crl.R.G. No. 785 of 1966 is thus allowed.