Arun Wahane vs The State of Maharashtra

A.P. Bhangale, J.—By this revision application the revision applicant has challenged the legality, propriety and correctness of the impugned judgment and order passed by the learned Additional Chief Judicial Magistrate, Nagpur on 9/11/2001 in Regular Criminal Case No. 12/1998 and confirmation thereof by Sessions Judge, Nagpur in Criminal Appeal No. 96/2001.

Heard the learned Advocate for the revision applicant and the learned A.P.P. for the Respondent.

It is submitted on behalf of the revision applicant that the alleged 2 incident of demand of dowry is stated to have occurred on 28/3/1997 but F.I.R. in respect thereof was lodged on 13/6/1997 after the delay of three months. It is further contended that the prosecution had suffered from very material improvements in its stages. The earlier charge was framed on 12/6/2000 at Exh.15 which reads as follows

That you in between the period 28.3.87 to 12.6.87 cheated to complainant Vanmala saying that, you would be married with her.

Secondly you for the purpose of marriage expenses obtained Rs. 40000/from the father of the complainant and thereby committed an offence punishable u/s 420 of IPC r/w Section 3 and 4 of Dowry Act 1961

The learned Advocate for the revision applicant contended that the accusations made in the charge (Exh.15) were not specific as it was simply alleged that the accused had in between period 28/3/1987 to 12/6/1987 cheated to complainant Vanmala saying that he would marry with her and secondly for the purpose of marriage obtained Rs. 40,000/from the father of the complainant and thereby committed an offence punishable u/s 420 of the Indian Penal Code read with Section 3 and 4 of the Dowry Act, 1961. The learned Advocate for the revision applicant submitted that on the basis of such vague charge which even did not mention the particulars of offence alleged nor the Enactment and Penal Provisions which were contravened trial was conducted. My attention is invited to the Dowry Prohibition Act, 1961 which came into force w.e.f. 1st July 1961 with an object to prohibit the evil practice of giving and taking of dowry. The penal provision Section 3 of the said Act indicate that giving or taking or abetting 3 the giving or taking of dowry is punishable with imprisonment up to five years and with fine and lesser sentence which may be imposed for adequate and special reasons. While Section 4 of the said Act prohibited demand either direct or indirect from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, as dowry which is made punishable for imprisonment of six months or more to the extent of two years and fine which may extend to Rs. 10,000/and the lesser sentence may be imposed for adequate and special reasons. Thus under the provisions of Dowry Prohibition Act demand for dowry is an offence u/s 4 of the said Act while giving, taking or abetting the giving or taking the dowry is made punishable u/s 3 thereof. These are two separate penal provisions. Section 420 of the Indian Penal Code is a separate offence which made cheating punishable as mentioned in the section when accompanied with dishonest intention to induce the person deceived deprive from any property or to make alteration or destroy the whole or any part of the valuable security etc. According to the learned Advocate the trial had proceeded on the basis of charge at Exh.15 and statement of the accused u/s 313 of the Code of Criminal Procedure was recorded at Exh.36 on 23rd of April 2001.Thereafter, on 10/9/2001 charge was altered to the prejudice of the accused as per Exh.46 which had variance with the earlier charge framed at Exh.15 in respect of penal provisions mentioned and also about the details and particulars of accusations. After the charge was framed as per Exh.46 no further opportunity to meet the accusations was accorded to the accused although it was imperative for the learned Trial Judge to hear the prosecution and the accused and to take all such evidence as may be produced. The learned Advocate for the revision applicant submitted that the Section 216(4) 4 of the Code of Criminal Procedure requires the learned trial Court to ensure that the alteration or addition, which was drastic ought not to result in prejudice to the accused or the prosecution. Therefore, the trial should have been adjourned to prevent such failure of justice so as to accord an opportunity in view of the Section 217 of the Code of Criminal Procedure to the prosecution as well as the defence to recall or resummon and examine any witnesses with reference to the alterations or additions made in the charge. The step which was required to be taken u/s 216(4) of the Code of Criminal Procedure was not taken by the trial Court, which deprived an opportunity to the accused to meet the altered and amended charge. The defence is therefore, prejudiced and the accused was deprived of an opportunity to meet the altered and amended charge resulting into failure of justice.

The learned A.P.P. chose to support the impugned judgment and order and contended that u/s 215 of the Code of Criminal Procedure no error in stating the offence or the particulars or omission to state offence or particulars shall be regarded as material unless accused was in fact misled by such error and omission and it has occasioned in failure of justice. Learned Advocate for the revision applicant is quick to point out that Section 215 precedes Section 216 of the Code of Criminal Procedure which enables the Court to alter or add the charge, which is further followed by provisions enabling the parties to recall the witnesses if charge is altered u/s 217 of the Criminal Procedure Code.

On hearing these submissions one has to bear in mind that the object of framing charge is to inform the accused and to give him an idea as to what 5 case he has to meet. The purport of framing charge, to read over and explain to the accused, is to provide an opportunity to the accused to meet the prosecution case. In the present case, it appears that statement of the accused u/s 313 of the Code of Criminal Procedure was recorded at Exh.36 on 23rd April 2001 while the charge was altered and amended on 10/9/2001 at Exh.46. The learned A.P.P. has relied on Section 464 of the Code of Criminal Procedure in order to canvass the statement that no offence, sentence or order of the competent Court shall be deemed invalid merely on the ground that no charge was framed or on the ground that any error, omission or irregularity in the charge including any misjoinder of charge unless in the opinion of the Court failure of justice has in fact occasioned thereby. Looking into the provisions of Section 464 in juxtaposition with provisions of Section 216 and 217 of the Criminal Procedure Code, in my opinion, if charge is drastically altered or amended after the stage of statement of the accused has been recorded u/s 313 of the Criminal Procedure Code, the trial Court ought to have adopted cautious and careful approach to adjourn the trial as contemplated u/s 216 of the Code of Criminal Procedure so as to enable either of the parties in the trial to adduce further evidence pursuant to amended or altered charge in the case. This was not done in this case. That being so, it has to be concluded that failure of justice has occasioned and serious prejudice has resulted to the accused which makes the conviction recorded by the Courts below unsustainable. That being so, the following order is passed in the interest of justice.

a. The impugned judgment and order passed by the Courts below is set aside and the proceedings are remanded back to the trial Court so as to commence the trial from the date of framing the amended and altered charge 6 at Exh.46 w.e.f.10/9/2001.

b. The trial Court shall give an opportunity to the parties to adduce more evidence if they so desire and then proceed to complete the trial and decide the same in accordance with law. Revision application is allowed accordingly.