P&H HC raps Police Authorities for conducting enquiry illegaly; Says Trial Court not to act as mouthpiece of prosecution while framing charges against accused

Read Order: Manjeet Kaur v. State of Punjab and Others

Monika Rahar

Chandigarh, February 25, 2022: While dealing with a revision petition against the rejection of petitioner’s application for alteration of charges, the Punjab and Haryana High Court has held that the trial Court is not to act as a mouthpiece of prosecution while framing charges against the accused, as suggested in the police report, but it must consider the broad probabilities of the case to form an opinion relating to the commission of the crime by the accused.

Also reflecting on how senior police officers were conducting illegal inquiry creating slip away points and making prosecution case fragile, the Bench of Justice Manoj Bajaj sternly stated that instead of carrying out a pragmatic and meaningful investigation in the crime, the Superintendent of Police being senior police officer of the State police department interfered in the investigation by illegally entertaining the representation on behalf of accused persons. 

Further, the Bench noticed the practice prevalent largely in Punjab whereby the senior police officers of state police department engage themselves in holding inquiries on the representations on behalf of the accused to examine their innocence, after registration of FIR and during the pendency of the investigation.

“Such inquiry reports by the inquiry officers based upon the defence of the accused are often delivered in their favour, and during this exercise, the inquiry officers illegally assume judicial role”, added Justice Bajaj. 

In this case, the petitioner (husband of deceased) filed revision against the order of the Additional Sessions Judge refusing to alter the charge framed against the accused in case FIR registered under Sections 302, 336, 148 and 149 IPC and Sections 25 and 27 Arms Act, 1959. 

The petitioner’s wife was giving a dance performance on stage at a wedding function when the accused fired a revolver shot which hit her head leading to her death. Thus, an FIR was registered and during the investigation, the offences punishable under Sections 302 and 336 IPC and Sections 25 and 27 Arms Act, 1959 were substituted with offences punishable under Section 304-A and 336 IPC and Section 30 Arms Act, 1959. 

Before the consideration of the final report filed by the Police, the Public Prosecutor moved an application for the committal of the case to the Court of Sessions, as prima facie, the offence punishable under Section 304 IPC was made out. The said application was allowed by Magistrate and the case was committed for Sessions trial.

Thereafter, the Additional Sessions Judge framed the charges against the accused/ second respondent for alleged commission of the offence under Sections 304 and 336 IPC, whereas the third respondent was charged under Section 30 Arms Act, 1959. During the case pendency, an application by the victim’s mother was filed for alteration of charge on the ground that the material on record indicated commission of offence punishable under Section 302 IPC and Sections 25 and 27 Arms Act, 1959 apart from the offence under Section 336 IPC. It was pleaded in the application that though the FIR was initially registered for the offence punishable under Section 302 IPC etc., subsequently, the police reduced the charges. 

On the power of framing of charge against accused, the Court observed that the same is governed by Section 228 Cr. P.C and at this stage, the trial Court is not to evaluate the proposed prosecution evidence and other material on record to ascertain the guilt of the accused, as this exercise is only for the limited purpose to find out, if, the ingredients to constitute the alleged offence(s) exist and prima facie suggest the involvement of accused in the commission of the crime. The Court further added that at the same time, the trial court is also not required to assess the probable defence of the accused to examine his or her innocence.

Further, it was noted by the Court that after initial framing of charges and commencement of the trial, if it appears to the trial court that the original charge needs to be altered or any other charge is required to be added, it can do so at any stage, but before pronouncement of the final judgement. While referring to Section 216 Cr.P.C, the Court stated that a Court in the exercise of this jurisdiction must be extremely careful and also keep in mind the stage of the trial and other attending circumstances to assess that the alteration would not cause any prejudice to the accused. 

Coming to the present case, the Court opined after considering the facts and circumstances that the trial Court was misdirected by the partisan stand of the prosecution agency, and further, it failed to apply its judicial mind in recording satisfaction for the purposes of framing appropriate charges against the accused.

Additionally, on the charge of murder, the Court opined that it is true that every murder is culpable homicide, but every culpable homicide is not murder, as these two expressions defined under Sections 299 and 300 IPC, respectively, are separated by a thin distinction, and if, the trial Court ignores this distinction in the given facts of the case, it may result in the miscarriage of justice. Applying the above legal position to the fact sheet of this case, Court observed that according to the prosecution itself, the accused fired the gunshot which hit the victim resulting in her death and undoubtedly this was a culpable homicide and in order to test that this amounts to murder, the Court should determine, if, the act attributed to accused falls within the four clauses of Section 300 IPC. 

“Prima facie, the firing by the accused was without any excuse, and was so imminently dangerous, that in all probabilities it carried a risk of causing death or such injury to other persons present there. As an exception to the other clauses, clause fourthly of Section 300 IPC is altogether different and does not contemplate the intention of the accused as an essential ingredient to constitute the offence. Therefore, the argument of the learned senior counsel that as the accused fired the gunshot without intention to commit murder, and no offence punishable under Section 302 IPC would be made out, is not acceptable at this stage of framing of charges”, adjudged the Bench. 

Resultantly, the impugned order was set aside by the Court and the application filed under Section 216 Cr.P.C. was allowed. The Trial Court was directed to frame the charges afresh against the accused persons and proceed with the trial.