Gopal Krishna Patnaik vs State of Orissa

P.K. Tripathy, J.—Heard.

This application u/s 482, of the Code of Criminal Procedure, 1973 (in short, "the Code") is disposed of at the stage of admission on consent of the parties and after hearing argument at length.

Petitioner challenges correctness of the order passed by learned S.D.J.M., Gunupur on 18.11.2000 in G. R. Case No. 20 of 1991, by amending the charge from one u/s 408, IPC to the offence u/s 409, IPC against the petitioner, and learned Addl. Sessions Judge, Rayagada on the revision application of the petitioner has confirmed that order and dismissed Criminal Revision Petition No. 14 of 2000 on 22.12.2001.

After hearing a lucid argument from Mr. Nanda, learned counsel for the petitioner and looking to the provision in Chapter-XV! I of the Code, this Court finds that petitioner is making a storm in a cup of tea in view of the provision in Section 215 of the Code which provides that no error or omission in stating either the offence or the particulars required to be stated in the charge shall be regarded at any stage of the trial to be material unless the accused is misled by such error or Commission and if that occasions in failure of justice. Provision in Section 216 of the Code says that a charge can be altered at any stage when the trial Court finds it necessary. Section 217 provides the consequence to follow on amendment of charge as per the provision in Section 216 of the Code. Provision in Section 221 and particularly Sub-section (2) of Section 221 of the Code provides that if the accused is charged with one offence and it appears in evidence that he committed a different offence for which he could have been charged under Sub-section (1), then he may be convicted for such offence even if no charge was framed. Provision has been made in the Code to frame charge with the dominant intention to give notice to the accused the particulars of accusation and not to enlighten him with provision of law. Therefore, the above quoted provisions from Chapter-XVII of the Code clarify the legal obligation of the Court to intimate to the accused the substance of the accusation for providing proper opportunity to defend. Thus, misdescription of the Section alone is not sufficient to interfere with the order of conviction.

ft reveals from the order of learned S.D.J.M. that at the outset when the question of framing charge was considered petitioner argued to frame charge against him for the offence u/s 408, IPC and accordingly charge was framed against him though charge-sheet had been filed for the offence punishable u/s 409, IPC. After recording some evidence trial Court found it proper that petitioner should be charged for the offence u/s 409, IPC. Accordingly he altered the charge though the fractual allegations remained same. Learned S.D.J.M. only changed the offence keeping in view the requirement of law as provided in Section 409, IPC. Trial has already commenced and witnesses have already been examined. Because of the amendment of charge, trial Court offered opportunity and the petitioner has exercised the same by asking the trial Court to recall all the P.Ws. for cross-examination (after amendment of the charge). At this stage petitioner wants a full proved decision as to whether he is a public servant or is an agent and to proceed with the trial or to discharge him. This Court feels that on the given facts and circumstances indulging in such consideration by this Court while is seisin of the application u/s 482 of the Code shall be a misuse of the jurisdiction vested in this Court. The impugned amendment of charge, as this Court finds, has not caused such a prejudice that it would result in failure of justice and therefore, on the face of Sub-section (3) of Section 397 of the Code this Court does not find any good ground to entertain this application u/s 482 of the Code. Accordingly, the application stands rejected.

Since the case was registered in the year 1991, notwithstanding submission of the charge-sheet in 1997, it is expected that the case should be given due preference for early disposal. Learned counsel for the petitioner states that petitioner is interested for expeditious disposal of the criminal proceeding and he shall cooperate in that respect. Learned Standing Counsel undertakes to instruct the Superintendent of Police, Rayagada to see that prosecution witnesses are made available to the Court for early disposal of the case.

A free copy of this order be handed over to learned Standing Counsel, Mr. A. K. Mishra.