BHABAGRAHI NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE three Criminal Revisions relate to same petitioner and since common questions of fact and law are involved, all the three matters are being disposed of by this judgment.

(2.) THE petitioner was initially convicted under Sections 409 and 468, Indian Penal Code, by the trial Court and the order of conviction was confirmed by the appellate Court. Criminal Revision No. 638 of 1932 filed by the petitioner was allowed by this Court by judgment dated 7 -2 -1994 reported in (1994) 7 0CR 215 (Bhabagrahi Mayak v. State of Orissa). The revision was allowed and the matter was remitted to the trial Court for fresh disposal on the ground that there had been improper framing of charges in contravention of Sections 219 and 220 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') and that there had been defective examination of the accused person under Section 313 of the Code. The matter was remitted to the trial Court with the following observations :

(3.) IN the present case the trial Court has nowhere recorded that the application has been filed for the purpose of vexation, or delay,or defeating . the ends of Justice. It has rejected the application merely because the High Court had observed that the evidence onrecord should be considered while disposing of the case'. The said observation of the High Court was never intended to curtail the rightof the parties conferred under Section 217 of the Code. On the other hand, the said observation had been made to obviate the question of ade novo trial, as envisaged in Section 216(4) of the Code. The provisions of Section 216 (3) and (4) as well as the provisions of Section 217 arerequired to be construed harmoniously and have been enacted with a view to abjure any possibility of any prejudice to the parties in acriminal case. Under Section 216(3), if the Court is of the opinion that no prejudice is likely to be caused, it can straightway proceed withthe trial, as if the altered or added charge, had been the original charge. if, on the other hand, the Court is of the .opinion that the alteration or addition in charge is likely to prejudice the accused or the prosecutor, it may adjourn the trial for such period as may be necessary or even direct a new trial as contemplated in Section 216(4). Section 210 (3) and(4) may relate to a stage prior to actual recording of evidence or any other stage of the trial, whereas Section 217 relates to alteration or addition of charge after the commencement of the trial, i. e. recording of evidence. But for the observations which had been made in the judgment while remanding the case, possibly the question under Section 216(4) as to whether a new trial should be held or not, would have cropped up and in order to avoid such a situation the High Court had opined that theevidence on record should be considered while disposing of the case. By no stretch of imagination, it can be said that the High Courthad, in fact, intended excluslon of applicability of Section 217 of the Code.