A.P.CHOWDHRI, J. - (1.) THIS revision is directed against the order of learned Additional Sessions Judge, Patiala, dated 10-1-1990.
(2.) BRIEFLY stated the material facts are that on a report lodged by Dalbir Singh case FIR No. 118 dated 28-6-1985 was lodged at Police Station Kotwali, Patiala, under Section 366 of the Indian Penal Code against respondent Nos. 2 to 4. The allegations made in the report were that Amardip Kaur alias Nitu aged below 16 years, daughter of Dalbir Singh, had been kidnapped by Baldip Singh accused with the active assistance of Ravinder Kaur and Amarjit Kaur, respondent Nos. 3 and 4 on 27-6-1985 from her house. Later Baldip Singh took Amardip Kaur to Mani Karan in the State of Himachal Pradesh where he committed rape on her. Amardip Kaur was later recovered. The police filed a challan under section 363 and 366 of the Indian Penal Code. The accused were committed and a charge under section 366 of the Indian Penal Code only was framed and the trial commenced in the Court of Additional Sessions Judge, Patiala. An application for adding the offence under sections 363 and 376 of the Indian Penal Code was made by the prosecution. It was dismissed by the learned Additional Sessions Judge by order dated 4-1-1889. The rejection of the application was based on two grounds. It was observed that the amendment of the charge at that stage will re-open the entire case necessitating re-examination of the witnesses and thereby the prosecution will be able to fill in certain lacuna which were left in the first instance and this was likely to cause prejudice to the accused. The second ground mentioned by the learned Additional Sessions Judge was that even though the offence of rape was allegedly committed in the State of Himachal Pradesh it was in the course of the same transaction and could be tried at Patiala from where the alleged kidnaping took place. The word used in this connection in Section 220 of the Code of Criminal Procedure was may, and, not shall. To avoid prejudice to the accused and also because the offence under section 376 of the Indian Penal Code could be tried in the State of Himachal Pradesh, the Court decided to exercise its discretion against accepting the application.
(3.) A second application was made by the Additional Public Prosecutor for adding offences under sections 363 and 376 of the Indian Penal Code. It was later on withdrawn by the learned A.P.P. on 28-8-1989. Thereafter, the first informant made a similar application. It appears that the application made by the first informant was supported by the learned A.P.P. By the impugned order the learned Additional Sessions Judge dismissed the application. Reference was made in the impugned order to the dismissal of the first application made by the prosecution which was dismissed by Shri S.S. Chahal, predecessor of the present Presiding Officer of the Court. It appears that the learned Additional Sessions Judge took the view that he could not review the order passed by his predecessor. Reference was also made to the second application made by the prosecution which was dismissed as withdrawn. On the ground of dismissal of the two applications moved by the prosecution, therefore, the present application was dismissed. An additional reason given in the impugned order is that charge had already been framed under section 366 of the Indian Penal Code which was an aggravated form of the offence under section 363 of the Indian Penal Code. No attempt was, however, made to explain any thing regarding the omission of the offence under section 376 of the Indian Penal Code.;