ROCKY BENEDIEK Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The order dated 5th June, 2003 passed by the learned Sessions Judge (E and N), Gangtok in Criminal Case No. 11 of 2002 is the subject-matter under challenge in this revision petition.

(2.) Facts of the case, in a short compass, are as follows :- The present accused-petitioners, namely, Shri Rocky Benediek and Smt. Jiji Rocky and one Shri Biju Henry have been facing the trial before the learned trial Judge in respect of the charges under Sections 302 and 201, I.P.C. as against the petitioner No. 2, Smt. Jiji Rocky and charges under Section 201/34, I.P.C. as against the present petitioner No. 1, Shri Rocky Benediek and one Shri Biju Henry vide Criminal Case No. 11 of 2002 and when the trial is/was at the stage of argument, the prosecution filed the application under Section 216, Cr.P.C. for adding the charge under Section 302/34, I.P.C. as against the accused-petitioner No. 1, Shri Rocky Benediek and to add the charge under Section 34, I.P.C. against the accused-petitioner No. 2, Smt. Jiji Rocky and the trial Court allowed the petition with the observations that the accused Rocky Benediek will not be prejudiced if additional charge under Section 302 read with Section 341, I.P.C. is framed against him in addition to the charges already framed and similarly, by addition of charge under Section 34, I.P.C. to the charges already framed against the accused-petitioner No. 2, Smt. Jiji Rocky, under the impugned order dated 5th June, 2003. Being dissatisfied with the impugned order, the present accused-petitioners filed this revision petition.

(3.) Supporting the case of the accused-petitioners, Mr. N. Rai, learned counsel submitted that there is no material on record for altering or adding of charges as against the petitioners inasmuch as petitioner No. 1's involvement for an offence under Section 302, I.P.C. by virtue of the impugned order does not bear out by the record placed before the learned Court below and apart from that the learned trial Court went one step ahead to frame a fresh charge exceeding his jurisdiction vested upon him by law when the prosecution only sought for addition of charge and, moreover, the learned trial Court has reviewed its previous order pertaining to framing of charges against the accused persons. According to Mr. N. Rai, learned counsel, the learned trial Court has no power to frame fresh charges under Section 216, Cr.P.C., but it can only alter or add to any charge and as such, the impugned order pertaining to the framing of fresh charges is an order passed without jurisdiction. It is also argued by the learned counsel that the facts for which the fresh charges were framed, were in existence at the time of framing of the first charge on 15th May, 2002 and no new facts or materials have come into light for framing of fresh charge and more so, the petition was filed at a belated stage. Mr. N. Rai, learned counsel went on to contend that the learned trial Court ought to have rejected the petition of the prosecution as there is/was no change in the circumstances of the case from the date of framing of the original charge to the present date to warrant addition of any charge. Mr. N. Rai, learned counsel had also relied upon a decision of the Apex Court rendered in Harihar Chakravarty v. The State of West Bengal reported in AIR 1954 SC 266 : (1954 Cri LJ 724) and decisions of Bombay High Court and Kerala High Court rendered in State of Maharashtra v. Ramdas Shankar Kurlekar reported in 1999 Cri LJ 196 and in a case between T. J. Edward v. C. A. Victor Immanuel reported in 2002 Cri LJ 1670 and contended that if a prejudice is caused to the accused by altering the charges then it is not permissible for the trial Court to change the charge. It is also argued by the learned counsel for the petitioners that no cogent reason has been assigned in the impugned order by the trial Court while allowing the prayer of the prosecution for addition of charges and apart from that the trial proceeded with and the evidences of both the sides were closed and the case was fixed for argument and at such stage framing of fresh charges by the trial Court is perverse and illegal and accordingly, it should be interfered with by this Court.