Smt. Poornima @ Purneshwari Choudhary vs Ishwari Patle and another

N.K. Gupta, J.—The applicant has challenged the order dated 7.9.2010 passed by the Additional Sessions Judge to the Court of First Additional Sessions Judge Balaghat in Criminal Revision No. 170/2009 whereby the application filed u/s 216 of Cr.P.C. by the respondents was accepted and the order dated 5.11.2009 passed by the JMFC, Balaghat in Criminal Case No. 2577/2006 in favour of the applicant u/s 311 of Cr.P.C. was set aside. The brief facts relating to the present revision are that the applicant had filed a criminal complaint against the respondents before the trial Court. The complaint was registered for the offence punishable under Sections 323 and 294 of IPC. In the prosecution evidence, it was noticed that the respondents entered into the house of the complainant and threatened her, and therefore an application was moved that the charges for the offence under Sections 452 and 506 (Part-II) of IPC may be framed and it was also prayed that the FIR lodged u/s 155 of Cr.P.C. was misplaced, and it is received by the brother of the complainant on 16.8.2009, hence it was prayed that the concerned Head Constable may be called to prove the FIR and concerned doctor Prasad may also be called in the evidence.

The learned Magistrate accepted the application filed u/s 311 of Cr.P.C. and directed to call Dr. Prasad in the evidence. Also the application u/s 216 of Cr.P.C. was allowed to amend the charges in the criminal revision filed by the respondents. The learned Additional Sessions Judge, Balaghat set aside the order dated 5.11.2009 passed by the learned JMFC, Balaghat.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the present case is complaint case, and therefore no provisions of Section 216 of Cr.P.C. are applicable to the complaint case. When a case is registered for triable of particular offences, then by the same bundle of facts, charges cannot be enhanced in the complaint case as per the provisions of Section 216 of Cr.P.C. The learned counsel for the applicant has placed his reliance upon the judgment of Hon''ble the Apex Court in the case of Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, . However, it is nowhere mentioned in the said judgment by Hon''ble the Apex Court that the matter was related with the complaint case triable by the Court of Magistrate. The interpretation done by Hon''ble the Apex Court relating to the provisions of Section 216 of Cr.P.C. is binding, but it is unfortunate that Section 216 of Cr.P.C. is not applicable to the complaint cases of summon trial. After considering the evidence under Sections 200 and 202 of Cr.P.C., if a case is registered for trial of a particular offence, then if anything more is brought on record at the time of deposition of the witnesses, then it cannot be said that whether the witnesses are telling a truth or giving their exaggerated version, and therefore on the basis of such statements, charges cannot be amended. The application filed by the respondents u/s 216 of Cr.P.C. was liable to be dismissed, and therefore the learned Additional Sessions Judge, Balaghat has rightly dismissed that application by quashing the order dated 5.11.2009 passed by the JMFC, Balaghat.

So far as the application u/s 311 of Cr.P.C. is concerned, if trial Court is of the opinion that the FIR lodged u/s 155 of Cr.P.C. is available, then it is an unquestioned document, because the FIR was written at the police station concerned. If it was mentioned in the FIR that the victim was examined by the concerned doctor, then the FIR and the medical report both are the essential documents to prove the guilt of the respondents for the offence u/s 323 of IPC. If such documents were not produced within a reasonable span of time, then still such documents can be filed during the pendency of the trial. Those documents are not shown to be forged and those are reasonably required for fair decision of the trial, then an opportunity is to be given to call such witnesses and to prove such documents. Therefore, the application filed u/s 311 of Cr.P.C. was to be accepted. The learned JMFC has rightly accepted that application and the learned Additional Sessions Judge has committed an error in setting aside the order of the JMFC relating to that application.

On the basis of the aforesaid discussion, the present revision filed by the applicant is partly allowed. The impugned order dated 7.9.2010 relating to the application u/s 216 of Cr.P.C. is hereby confirmed but relating to the application u/s 311 of Cr.P.C. is hereby set aside by maintaining the order dated 5.11.2009 passed by the JMFC Balaghat relating to that application. A copy of this order be sent to the trial Court for information and compliance.