SUBBA RAO Vs. STATE PUBLIC PROSECUTOR

JUDGEMENT

(1.) This petition by the sixteen accused is laid for quashing the further charge framed against them under S. 228 (1) of the Code of Criminal Procedure, for an offence under Section 149 l.P.C. by the Assistant Sessions Judge, Chirala.

(2.) The facts necessary for the disposal of this petition briefly stated are these : An. F.I.R. was registered against the 16 accused on 8-9-1977 by the Sub-Inspector of Police, Vetapalens, for the offences under Ss. 147, 148, 149, 448, 324 and 326, l.P.C. alleged tp have been committed by them on 7-9-1977. After investigation, a charge-sheet was laid by the Sub-Inspector on 30-11-1977 for the offence under Ss. 148, 324. 326, 307 and 149 l.P.C. The judicial Second Class Magistrate, Chirala, committed the accused to Sessions, as one of the offences i.e., the offence under Section 307 I.P.C. was exclusively triable by the Sessions Court. On receipt of the Committal Order, the Sessions Judge. Ongole, made ever the case to the Assistant Sessions Judge on a consideration of the record and the documents and on hearing the accused and the prosecution, framed charges for the offences under Ss. 148, 307 an and 448 l.P.C. At that stage, he did not frame any charges for the offences under Ss. 324, 326 and 149 l.P.C. The final Final arguments were heard on 21-3-1978. The case was posted for judgment on 28-3-1978. At that Stage, the Assistant Sessions Judge felt that there ought to have, been a further charge fpr the offence under S. 149, I.P.C and accordingly framed a further charge for this offence under S. 228 (1), Cr.P.C. The framing of the further charge was sought to be challenged by the accused by filing Crl. M.P. No. 9 of 1978 on the file of the Sessions Judge, Ongole, who declined to interfere. On the same ground of framing of a further charge at the end bf the trial, it was also contended that the Asst. Sessions- Judge had made up his mind to convict the accused and thus they also sought a transfer of the case. The Sessions Judge did not accede to this request of tne accused. Hence this Crl. M.P. is laid before the High Court for quashing the further charge.

(3.) It was contended by the learned counsel for the petitioners that when once the 'Asst. Sessions Judge, on the material and the documents including statements recorded under S. 161 Cr. P.C. did not think it proper to frame a charge under Section 149 I P.C. it must be deemed that he has discharged the accused of the offence under S. 149 l.P.C. The further contention is that S. 216. Cr. P.C. would only cover cases where a new offence is disclosed by the evidence during the trial and not, a case for which there was some material initially either by way of charge sheet or the uncross- examined statements of the prosecution witnesses recorded under S. 161 Cr. P.C. The other contention was that the learned Asst. Sessions Judge also did not resorc to S. 216 Gr. P.C., but only framed a charge under S. 228, Cr. P.C., which power he had already exhausted. The further contention is that by framing an additional charge for the same offence with regard to which there was already a discharge, the Court proceeded to review its earlier order and such a power of review is not vested in a Criminal Court. It was also contended that there are no inherent powers in the subordinate courts to re-call or review its own orders. Thus, it is contended that the framing of the further charge is illegal and without jurisdiction and therefore liable to be quashed