Abdul Qayoom Ganai vs State

J.P. Singh, J.—Petitioner has filed this petition u/s 561-A of the Code of Criminal Procedure seeking quashing of Order dated 12-02-2007

of Learned Sessions Judge, Baderwah as also the Charge Sheet in File No. 62/Challan titled State v. Abdul Qayoom Ganai alias Sagar Sahari.

Mr. Goni, learned Senior Counsel, appearing for the petitioner submits that the petitioner had been prejudiced by the charge sheet framed by

Learned Sessions Judge, Baderwah wherein he has been shown to have committed an offence which was punishable u/s 376 RPC. According to

the learned Counsel, the mis-description of the offence in the charge sheet would render the charge sheet unsustainable requiring rehearing of the

case by the Learned Sessions Judge.

Mr. Goni's attention was drawn to Order dated 1st of March, 2007 where the Learned Sessions Judge had corrected the error which had

corrected in the Charge Sheet. Responding to the query, learned Counsel submitted that the correction made by Learned Magistrate in the charge

sheet was without jurisdiction as the trial court did not have any jurisdiction to correct the error which had corrected in the charge sheet in mis-

describing the offence with which the petitioner had been charged.

Mr. Salathia, Learned Additional Advocate General on the other hand submitted that the correction made by Learned Sessions Judge vide his

interim order dated 1-03-07 in describing the offence with which the accused stood charged as 302 RPC, the Learned Sessions Judge had

corrected only a clerical error for which the Learned Sessions Judge possessed jurisdiction so to do learned Counsel refers to Section 369 of the

Code of Criminal Procedure to support his submission.

I have considered the submissions of learned Counsel for the parties and perused the records of the trial court.

Perusal of the records of the trial court reveals that the Learned Sessions Judge, Bhaderwah had passed a detailed order on 12-02-07 dealing

with the contentions raised by the prosecution and the accused including the one as to whether the accused was required to be charged for offence

u/s 302 RPC or u/s 304 RPC. The Order of Learned Sessions Judge holds on the basis of the record produced u/s 173 of the Code of Criminal

Procedure that a case u/s 302 RPC had been made out against the accused which was required to be charged u/s 302 RPC. It further appears

from the charge sheet that the accusation appearing against the petitioner in a police report u/s 173 of the Code of Criminal Procedure had been

reflected in the memo of the charge sheet. But while indicating the punishment provided for the charge, the Learned Sessions Judge had shown the

accusation against the accused to be punishable u/s 376 RPC rather than Section 302 RPC.

On coming to know of the error which had crept in the charge sheet, the Learned Sessions Judge had corrected the error by showing 302 RPC

as the offence under which the accused, if proved to have committed the offence, would be punishable.

Section 369 of the Code of Criminal Procedure, Svt. 1989 needs to be noticed which reads thus:

Court not to alter judgment - Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of the

High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical

error.

A bare reading of this section indicates that the statute does not permit a Court to alter or review its judgment after it had been signed. The

section, however, carves out a proviso that the statutory bar not to alter judgment when it was signed, would not apply when the Court intended to

correct a clerical error.

I, therefore, do not find substance in Mr. Goni's submission that the Learned Sessions Judge had erred in correctly describing the offence with

which the Court had charged the petitioner on the basis of police report u/s 173 of the Code of Criminal Procedure.

His submission is accordingly rejected. I, however, feel that the Learned Sessions Judge, after correcting the offence with which the accused

had been charged should have read over the charge in its entirety to the accused for his explanation, if any. The accused was further required to be

asked whether he would plead guilty to the offence charged or claimed to be tried.

I would, accordingly, dispose of this petition with a direction to the Learned Sessions Judge, Bhaderwah to read over and explain the amended

charge to the accused seeking his explanation, if any, and as to whether he would plead guilty to the offence charged or would claim to be tried.

Learned Sessions Judge shall comply with the requirements of Section 269 of the Code of Criminal Procedure in letter and spirit and would

thereafter proceed with the trial of the case.