To decide whether an offence is a minor offence in relation to another offence under Section 222 of the Code, it needs to be ascertained whether both are cognate offences or that they belong to the same genus and species of offences.
| Case name: | State (Govt Of Nct Of Delhi) V/S Ramtej |
| Case number: | Crl. Rev. Petition 464/2017 |
| Court: | Supreme Court of India |
| Bench: | Hon’ble Justice Vinod Goel |
| Decided on: | 17.10.2017 |
| Relevant Act/Sections: | Section 302, 376 A and 300 of Indian Penal Code, 1960; Section 212; 217 and 464 of Code of Criminal Procedure |
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The prosecution charge-sheeted the accused/respondent under Sections 302/201/376A/377/392 read with Section 411 of the IPC. The ASJ vide order dated 09.09.2015 framed charges under Sections 201/376A/392/411 of the IPC stating that there was no material for framing charges against the accused under Section 377 of the IPC and that the offence under Section 376A was a graver offence than the offence under Section 302 of the IPC.
- The cause of death of the deceased was due to the combined effect of strangulation and shock due to visceral injuries and blood loss due to insertion of wooden objects in both the private parts as per the post-mortem report and therefore there was no question of framing an alternate charge under Section 302 of the IPC.
- The order dated 09.09.2015 of the ASJ was assailed by the State in Criminal Revision Petition 254/2016. It was argued by the State that the charge under Section 302 of the IPC has not been framed by the ASJ even though there was ample medical evidence on record. This petition was disposed of on 23.08.2016 with liberty to the State to approach the ASJ for framing a charge on the basis of the material before the Court.
- The petitioner exercised the liberty so granted by this Court and moved an application before the ASJ for framing an additional/alternative charge under Section 302 of the IPC. This application was dismissed of vide impugned order dated 29.08.2016 whereby the ASJ surprisingly concluded that this application was filed beyond the scope of liberty granted by this Court wherein the State had prayed for amendment of the charge and particularly for framing of charge under Section 302 of the IPC. The ASJ also observed that the application was devoid of any merit in view of his earlier order dated 09.09.2015.
- This Criminal Revision Petition impugns an order dated 29.08.2016 passed by the Court of Additional Sessions Judge, Fast Track Court, Patiala House Courts, New Delhi.
- ISSUE BEFORE THE COURT:
- i. Whether the Trial/Revisionist Court has the power to alter/add charge to the original charges?
- ii. Whether the offence under Section 302 of the IPC is of the same genus and species as the offence given under Section 376A of the IPC?
- iii. Whether there is sufficient material on record to frame a charge under Section 302 of the IPC in the present case?
- RATIO OF THE COURT:
- The learned counsel for the state argued that the ASJ erred in holding the offence under sec 302 minor to that under sec 376 A of IPC. He submitted that both the offences belong to different genus and an offence of rape cannot be compared to the offence of murder.
- He further argued that the ASJ committed an error in not appreciating the spirit of the order passed by this Court on 23.08.2016 whereby liberty was granted to move the Trial Court with an application under Section 216 of the Code for framing a charge as per the material available on record and that there is plenty of evidence available which paves the way for a charge under sec 302. He relied upon the judgment of the Hon’ble Supreme Court in Dalbir Singh v State of U.P (2004) 5 SCC 334 (para 17) in support of his arguments.
- Per contra, the counsel for respondent urged that a Court under Section 216 of the Code can only alter or add to a charge that has already been framed but cannot frame an alternative charge. He emphasised that such alteration must be based on some material on record and not based on conjectures. He relied on the judgment of the Hon’ble Supreme Court in Anant Prakash Sinhs alias Anant Sinha vs State of Haryana & Others (2016) 6 SCC 105 and a judgment of this Court in X v State of NCT of Delhi 2016 LawSuit(Del) 2839.
- The Court relied upon CBI v. Karimullah Osan Khan, (2014) 11 SCC 538 laid down the scope of adding/altering charges under Section 216 of the Code to opine that merely because alteration has been made in the charges would not lead to conclusion that prejudice was present in the same.
- The court observed that there is no doubt that the trial court can alter/add to a charge already framed at any stage before the judgment is pronounced provided that the safeguards under Section 216 and 217 of the Code are followed so that no prejudice is caused to the accused.
- Further the court relied upon Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC and Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300 wherein it was held that although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence.
- The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
- Therefore to decide whether an offence is a minor offence in relation to another offence under Section 222 of the Code, it needs to be ascertained whether both are cognate offences or that they belong to the same genus and species of offences. Punishment alone cannot be the deciding factor in determining the minor offence.
- Furthermore, under 376 A the ingredients are fulfilled if due to the commission of rape, the same causes death of the victim whereas under sec 300 there must be an intention to cause death which is not required under sec 376 A. Also minimum punishment under 376 A is 20 years whereas it is life imprisonment under sec 302. Therefore the latter cannot be held a minor offence to the former.
- The court observed Impugned order is per se whimsical, illegal & perverse and speaks of nonapplication of judicial approach and grave error has been committed by the ASJ by which the failure of justice has in fact occasioned on account of non-framing of charge under Section 302 of the IPC
- Since the victim had died and due to the nature of injuries inflicted on her, it might be difficult for the prosecution to prove the offence of rape which would result in the accused being acquitted altogether resulting in the casualty of justice. It might be easier for the prosecution to prove murder given the nature of victim’s injuries.
- The court therefore held the judgment of ASJ to be perverse and illegal and in the light sec 464 and 217 found it appropriate to redirect the order.
- DECISION HELD BY THE COURT:
- The court finally directed that the impugned order dated 29.08.2016 passed by the ASJ declining the request of the prosecution to frame additional charge under Section 302 of the IPC is set aside.
- The ASJ was directed to frame an additional charge under Section 302 of the IPC and commence the trial in accordance with law keeping in view the provisions of Section 217 and Section 464(2) (a) (b) of the Code. It is directed that the trial shall be continued on a day to day basis and the ASJ shall conclude the trial within 3 months of receiving this order.
- Trial court record be sent back forthwith. Copy of this order be circulated to all the judicial officers for their knowledge and guidance.