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Kantilal Keshewlal Shah Vs. Prabodhchandra Panachand of Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1964CriLJ87; (1964)GLR606
AppellantKantilal Keshewlal Shah
RespondentPrabodhchandra Panachand of Ahmedabad and ors.
Excerpt:
- .....months.2. under section 207a, criminal procedure code if a magistrate is of the opinion that an accused person should be committed for trial, he shall frame a charge under his hand declaring with what offence the accused is charged. under section 271 of the same code, that charge has to be read out in court and explained to the accused at the commencement of the proceedings in the sessions court, and the accused should be asked whether he pleads guilty to the charge or claims to be tried. the proceedings before the sessions court therefore, open with the charge already framed by the committing magistrate.3. but it is open to the sessions judge after commincing the proceedings to alter the charge. it is provided in section 227 of the criminal procedure code as follows:(1) any court may.....
Judgment:
ORDER

V.B. Raju, J.

1. One Lohar Babu Jakku was committed to the Sessions Court on a charge under station 307. I. P. Code, but the learned Sessions Judge of Kutch at Bhuj framed a charge under Section 324. Indian Penal Code. To such a charge the accused pleaded guilty and there-upon he was convicted under Section 324, I. P. Code and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 50/- in default rigorous imprisonment for two months.

2. under Section 207A, Criminal Procedure Code if a Magistrate is of the opinion that an accused person should be committed for trial, he shall frame a charge under his hand declaring with what offence the accused is charged. under Section 271 of the same Code, that charge has to be read out in Court and explained to the accused at the commencement of the proceedings in the Sessions Court, and the accused should be asked whether he pleads guilty to the charge or claims to be tried. The proceedings before the Sessions Court therefore, open with the charge already framed by the committing Magistrate.

3. But it is open to the Sessions Judge after commincing the proceedings to alter the charge. It is provided in Section 227 of the Criminal Procedure Code as follows:

(1) Any Court may alter or add to any charge at any time before judgment is pronounced, or, in the case of trials by injury before the Court of Sessions or High Court before the verdict of the jury is returned.

2. Every such alteration or addition shall be read and explained to the accused.

The learned Counsel for the accused relies on Section 226 of the Criminal Procedure Code which reads as follows:

When any person is committed for trial without a charge or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State may frame a charge or add to or otherwise al ter the charge as the case may be, having regard to the rules contained in this Code as to their form of charges.' This section contemplates three alternatives in which a charge can be framed by the Sessions Court or the High Court as the case may be, namely, (1) where a person is committed for trial without a charge; (2) where a person is committed for trial with an imperfect charge; and (3) where a person is committed for trial with an erroneous charge. In the first case, the section provides that the Sessions Court or the High Court as the case may be may frame a charge. In the second and third cases, the section provides that the Sessions Court or the High Court as the case may be may add to or otherwise alter the charge, having regard to the rules contained in the Code of Criminal Procedure as to-the form of charges.

4. It is contended by the learned Counsel for the accused that under Section 226, Cr.P.C. It is open to a Sessions Judge to frame a charge under Section 323 or 324, I. P. Code, although the Magistrate has committed the accused to the Sessions Court for trial under Section 302 or Section 307, Indian Penal Code. The contention is that the Sessions Judge can do so, if on the evidence there is no sufficient ground to commit the accused person to the Sessions Court for trial under Section 302 or Section 307, Indian Penal Code. This contention must be rejected because Section 226, Cri. Pro. Code, gives powers to the Sessions Court to frame a charge only in cases where a person is committed for trial without a charge. The power of framing a charge is restricted to such a case. in cases. Where a person is committed to the Sessions Court for trial with an imperfect or erroneous charge; the Sessions Court may add to or otherwise alter the charge.

5. But the instant casa is not a case of adding to or altering the charge framed by the committing Magistrate. Section 226, Criminal Procedure Code, deals with the form of charges. It derails with cases where there is no charge or where there is an imperfect form of charge or error in the form of the charge. Section 226 is found in Chapter XIX of the Criminal Procedure Code, which is headed 'Form of Charges'. If therefore, there is an error in the charge as framed by the committing Magistrate in regard to the form of the charge that can be corrected by the Sessions Court.

6. In any case the sessions trial must open with the reading of a charge as framed by the committing Magistrate. This is so provided in Section 271 of the Criminal Proceidure Code. Having done so, the Sessions Judge might alter or add to the- charge. In cases where an accused person is committed to the Sessions Court for trial without a charge, it is open to him under Section 226, Criminal Procedure Code to from a charge. But, in cases where an accused person has been committed to the Sessions Court for trial upon a charge framed by the committing Magistrate, after reading out and explaining the charge to the accused and taking the plea of the accused to such charge under Section 271, Cri Pro. Code, the Sessions Judge may alter or correct the charge as provided in Section 227, Criminal Procedure Code and Section 226, Criminal Procedure Code.

7. The contention that it is open to the Sessions Court before commencing the proceedings of the sessions trial to frame a fresh charge under a different section altogether without reading out and explaining the charge as framed by the Committing Magistrate cannot be accepted. The contention of the learned Counsel for the accused Is that it is open to the Sessions Court to do so, if in his opinion the evidence does not justify the framing of a charge for an offence under which the committing Magistrate has framed the charge. This power of quashing a charge rests only with the High Court and cannot be exercised by the Sessions Court under Section 225 or Section 227 of the Coda of Criminal Procedure.

8. When a person has been committed to the Sessions Court for trial for a particular offence, the Sessions Court must try him for that offences, but it is not open to the Sessions Court to quash the charge; directly or indirectly by framing a fresh charge for a different offence altogether. This is in fact, what the learned Sessions Judge has done. In fact, he has given no reasons for framing a charge under Section 324, Indian Penal Code, and not reading out the charge under Section 307, Indian Penal Code, to the accused as provided in Section 227, Criminal Procedure Code. Whether he gives reasons or not, the Sessions Judge has no power to indirectly or directly quash the charge under which aft accused person has bean committed to the Sessions Court for trial.

9. The revision application is avowed and the con vacation of the accused opponent No. 1 and the serif tence passed upon him under Section 324, Indian Penal Code, are set aside. The learned Sessions Judge is directed to re-try the accused person upon the charge under Section 307 Indian Penal Code upon which he has been committed. The Sessions Court has of corsair power to amend and alter the charge as already stated above.


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