GIRRAJ PRASAD MEENAversusSTATE OF RAJASTHAN & ORS.

                   [2013] 10 S.C.R. 393


                 GIRRAJ PRASAD MEENA                           A
                             v.
             STATE OF RAJASTHAN & ORS.
            (Criminal Appeal No. 1547 of 2013)
                  SEPTEMBER 30, 2013
                                                               B
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

    Code of Criminal Procedure, 1973:

     s.252 and Chapter XXl-A - FIR uls. 365 /PC - Alleging     c
offence of kidnapping against 7 persons - Police fifed charge-
sheet uls.323 and 343 rlw. s.34 /PC only against two accused
- Both the accused fifed application pleading guilty for the
offences charged - Trial court without notice to the victim
convicted the accused u/ss.323 and 343 rlw. s.34 /PC and 0
concluded the trial same day - Application u/s. 482 by the
appellant dismissed by High Court - Held: Order of trial court
stands vitiated as it proceeded not only in great haste but
adopted a procedure not known in law - The Court was obliged
to put the victim to notice before extending the benefit to the E
accused persons.

     s. 216 - Finality of charges - Filing of charge-sheet and
taking cognizance has nothing to do with finality of charges,
as the charges can be altered, amended, changed and added
at any stage upto the stage of conviction.                     F

    Probation of Offenders Act, 1958 - s.12 - Conviction of
accused u/ss. 323 and 343 rlw. s.34 /PC, on their having
pleaded guilty - Further held that conviction would not affect
their Government service - Held: Trial court had no G
competence to make any observation having civil
consequences.

    Pursuant to order u/s. 156(3) Cr.P.C. for investigation,
                            393
                                                               H
    394      SUPREME COURT REPORTS            [2013] 10 S.C.R.


A   FIR u/s. 365 IPC was lodged, alleging that appellant was
    kidnapped by the private respondents alongwith 5 other
    accused. Police, after completing the investigation, filed
    charge-sheet against only two accused (private
    respondents) u/ss. 323 and 343 r/w Section 34 IPC. Both
B the accused-respondents filed an application pleading
    guilty for the offences u/ss. 323 and 343 IPC,before the
    statements of the witnesses were recorded. The trial
    court entertained the application forth with and
    concluded the trial immediately convicting the accused
c u/ss. 323 and 343 r/w Section 34 IPC, without issuing
    notice to the appellant. The accused were further granted
    benefit of provisions of s.12 of Probation of the Offenders
    Act, 1958, holding that the order passed in the criminal
    case, shall not have any adverse affect on the
    Government service of the accused persons. Appellant
0
    challenged the order of trial court by filing application u/
    s. 482 Cr.P.C. High Court dismissed the application
    holding that the appellant had not challenged the order
    taking cognizance nor any objection was raised when
  • charges were read over to the accused. Hence the
E present appeal.

          Allowing the appeal, the Court

       HELD: 1.1. The appellant has been raising the
F grievance from the very beginning that the police has not
  been investigating the case properly and for that
  purpose, he had also approached the High Court by filing
  Writ Petition, wherein several directions had been issued
  by the Division Bench of the High Court to the Director
G General of Police for a fair investigation. In the statement
  of the appellant recorded under Section 164 Cr.P.C.,
  appellant gave a full version as to how he had been
  kidnapped and illegally detained. Appellant named 7
  persons and serious allegations of criminal intimidation,
  threats, terrorising and causing physical harm had been
H
GIRRAJ PRASAD MEENA v. STATE OF RAJASTHAN 395
                 & ORS.
levelled. The police after concluding the investigation       A
filed a charge sheet only against the two accused and,
that too, only for the offences punishable under Sections
323 and 343 IPC. [Para 7] [401-C·F]
     1.2. Had the trial court applied its mind to the material
collected during investigation and particularly the B
statement recorded under Section 164 Cr.P.C., the
charges could have been framed also under Section 365
IPC. In that case, the Gram Nyayalaya would have no
jurisdiction to deal with the matter as the maximum
sentence for that offence is 7 years imprisonment with C
fine, and the Magistrate in that situation, was bound to
commit the matter to the Sessions court. Further, before
the statements of the witnesses could be recorded, the
private respondents filed an application admitting their
guilt. Had the statements of the witnesses been recorded, D
perhaps the court could have issued summons to other
accused under Section 319 Cr.P.C. or charges could have
been amended/altered/modified under Section 216                •
Cr.P.C. More so, at that stage, the appellant was not heard
as no notice had been issued to him. The trial court E
proceeded not only in great haste, but adopted a
procedure not known in law, and the judgment and order
of the trial court therefore stands vitiated. [Paras 8 and
9) [401-G-H; 402-A-C]
     1.3. The High Court rejected the application under F
Section 482 Cr.P.C. filed by the appellant only on the
ground that the appellant neither challenged the order of
taking cognizance nor raised any objection at the time of
reading over of the charges to the accused. The High
Court failed to appreciate that before the statement of the G
appellant or any other witness could be recorded, the trial
court disposed off the matter on the date when the
application itself had been submitted admitting the guilt.
Even otherwise if the trial court wanted to entertain any
issue of plea bargaining under Chapter XXl-A, inserted H
    396      SUPREME COURT REPORTS           [2013] 10 S.C.R.

A w.e.f. 5.7.2006, then too the court was obliged thereunder
  to put the victim to notice before extending any such
  benefits that have been given in the present case. The
  procedure therefore appears to have been clearly
  violated. Therefore, in the facts and circumstances of the
B case, the appellant had no opportunity to raise any
  grievance before the appropriate forum. [Para 13) [404-
  B-E]
       1.4 Filing of charge sheet and taking cognizance has
  nothing to do with the finality of charges, as charges
C framed after the cognizance is taken by the court, can be
  altered/amendedfchanged and any charge can be added
  at any stage upto the stage of conviction in view of the
  provisions of Section 216 Cr.P.C. The only legal
  requirement is that, in case the trial court exercises its
D power under Sections 228/251 Cr.P.C., the accused is
  entitled to an opportunity of show-cause/hearing as
  required under the provisions of Section 217 Cr. P.C.
  [Para 6) [400-H; 401-A-B]
E         Umesh Kumar vs. State of A.P. JT 2013 (12) SC 213:
    2013 (10) sec 591 - relied on.
      2. The trial court had no competence to make any
  observation having civil consequences so far as the
  private respondents are concerned. Section 12 of the
F Probation of Offenders Act, 1958 does not take away the
  effect of conviction for the purpose of service also. [Paras
  11 and 13) (402-G; 404-B]
       State of U.P. vs. Ranjit Singh AIR 1999 SC 1201: 1999
  (1) SCR 786; Shankar Dass vs. Union of India and Anr. AIR
G 1985 SC 772: 1985 (3) SCR 163; Sushi/ Kumar Singhal vs.
  Regional Manager, Punjab National Bank (2010) 8 SCC 573:
  2010 (9) SCR 796; Aitha Chander Rao vs. State of A.P. 1981
  Supp SCC 17; Harichand vs. Director of School Education
  AIR 1998 SC 788: 1998 (1) SCR 143; Divisional Personnel
H Officer, Southern Railway and Anr. vs. T.R. Chellappan AIR
GIRRAJ PRASAD MEENA v. STATE OF RAJASTHAN 397
                 & ORS.
1975 SC 2216: 1976 (1) SCR 783; Trikha Ram vs. V.K. Seth         A
and Anr. AIR 1988 SC 285: 1987 Suppl. SCC 39; Karamjit
Singh vs. State of Punjab (2009) 7 SCC 178 - relied on.
                     Case Law Reference:
    2013 (1 O) sec 591        relied on            Para 6        B

    1999 (1) SCR 786          relied on            Para 10
    1985 (3) SCR 163          relied on            Para 11
    2010 (9) SCR 796          relied on            Para 12       c
    1981 Supp sec 11          relied on            Para 12
    1998 (1) SCR 143          relied on            Para 12
    1976 (1) SCR 783          relied on            Para 12
                                                                 D
    1987 Suppl. sec 39        relied on             Para 12
    (2009) 1 sec 118          relied on            Para 12

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1547 of 2013.                                                E
    From the Judgment and Order dated 23.04.2012 of the
High Court of Judicature for Rajasthan Bench at Jaipur in S.B.
Criminal Misc. Petition No. 1260 of 2012.

    H.D. Thanvi, Abhishek Gupta, Preeti Thanvi, Sarad Kumar      F
Singhania for the Appellant.

      Nilofar Qureshi, Rehnuma, Vivek Singh, Pragati Neekhra
for the Respondents.

    The Judgment of the Court was delivered by                   G

    DR. S.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 23.4.2012
passed by the High Court of Judicature of Rajasthan (Jaipur
Bench) in S.B. Criminal Misc. Petition No. 1260 of 2012, by      H
    . 398       SUPREME COURT REPORTS              [2013] 10 S.C.R.


A which the High Court rejected the application filed by the
  appellant under Section 482 of Code of Criminal Procedure,
  1973 (hereinafter referred to as 'Cr.P.C.')-for setting aside the
  judgment and order dated 15.7.2011 passed by the Judge,
  Gram Nyayalaya, Gangapur City, District Sawai Madhopur,
B Rajasthan, in Case No. 269 of 2011, whereby the trial court has
  allowed the application of the respondents-accused for
  pleading guilty for the offences punishable under Sections 323
  and 343 of the Indian Penal Code, 1860 (hereinafter referred
  to as the 'IPC') and has further given them the benefit of Section
c 12 of the Probation of the Offenders Act, 1958, (hereinafter
  referred to as the 'Act 1958'), in the case arising out of FIR No.
  115 of 2009 lodged at Police Station Wazirpur under Section
  365 IPC.

            2. Facts and circumstances giving rise to this appeal are
D that:

            A. The learned Magistrate passed an order under Section
  156 (3) Cr.P .C. for the investigation whereunder FIR No. 115
  of 2009 under Section 365 IPC was lodged on the complaint
E filed by one Kamlesh Meena, who is brother-in-law of the
  appellant, alleging that the appellant had been kidnapped by
  the private respondents alongwith other accused when he was
  returning from the school duty as a teacher.

        B. Police investigated the matter, located the appellant
F  from village Jeevli on 4.7.2009 and recorded the statEmients
   of various persons under Section 161 Cr.P.C, and the
 - statement of the appellant was recorded under Section 164
   Cr.P.C. After completing the investigation, the police filed a
   charge sheet dated 4.8.2010 against the accused - namely
G private respondents only for offences punishable under
   Sections 323, 343 read with Section 34 IPC.

        C. After filing of the charge sheet, the trial commenced.
  On 3.1.2011, the court ordered the presence of the witnesses
H for recording their statements on 9.6.2011. However on the said
GIRRAJ ·PRASAD MEENA v. STATE OF RAJASTHAN 399
         & ORS. [DR. B.S. CHAUHAN, J.]

date, the summons were issued to three witnesses, including            A
the appellant for recording their evidence on 7.7.2011. But on
the date so fixed, the trial could not proceed.

     D. On 15.7.2011, both the accused-respondents appeared
before the learned trial court and filed an application pleading
                                                                       8
guilty for the offences under Sections 323 and 343 IPC. The
said application was entertained forthwith and the learned trial
court concluded the trial on that day itself, without issuing notice
to the appellant, convicting the respondents under Sections 323
and 343 IPC and imposing a fine of Rs.500/-, and further
granting them the benefit of provisions of Sections 3 & 12 of          C
the Act 1958. The learned Magistrate further held that the order
passed in criminal case herein shall not have any adverse affect
on the government service of the accused persons.

     E. Aggrieved, the appellant challenged the said judgment          D
and order dated 15. 7 .2011 before the High Court on yarious
grounds including that the court below had committed an error
in not taking into consideration the statement of the appellant
under Section 164 Cr.P.C., wherein serious allegations had
been made against the accused persons and others particularly          E
that the appellant was kidnapped and illegally detained from
29.6.2009 to 4.7.2009; terrorising and threatening him that his
hand and legs would be chopped of; abusing the complainant
persistently. The case was disposed off h~stily in-one day
without notice to the appellant. More so, the court below had
                                                                       F
no right to make the observation that the order of conviction
would not adversely affect the services of the respondents-
accused.

      F. The High Court dismissed the said application vide
order dated 23.4.2012 on the ground that the appellant has not         G
challenged the order taking cognizance nor any objection was
raised when charges were read over to the accused and the
respondents-accused had been convicted on their pleading
guilty regarding the aforesaid offences. The High Court held that
there was no obligation in law to hear the appellant or any other      H
    400       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   witness at this stage and the trial court was right in passing the
    impugned order.

          Hence, this appeal.

        3. Shri H.D. Thanvi, learned counsel appearing on behalf
B of the appellant, has raised a large number of issues and
  insisted that the trial court had no right to make any observation
  that the conviction could not have adverse affect on the service
  of the respondents. More so, the courts below had committed
  an error in exceeding the scope of the provisions of Section
C 12 of the Act 1958. The trial stood concluded without framing
  the charges, without issuing notice to the appellant.

       4. On the other hand, Ms. Nilofar Qureshi, learned counsel
  appearing on behalf of the private respondeots, has opposed
  the appeal contending that the judgment and order impugned
0
  is passed in consonance with law and does not require any
  interference. In fact, appellant is the father of son-in-law of
  respondent no.2-accused Kirodi Lal Meena. Respondent's
  daughter Hemlata had been ill-treated by the appellant and his
  family. There had been various civil and criminal cases
E between the parties and the present case is just a counter blast
  to such proceedings.

      Shri Vivek Singh, learned Standing counsel appearing on
  behalf of the State of Rajasthan, has supported the case of the
F respondents-accused contending that the orders of the courts
  below are in consonance with the statutory provisions and once
  a charge sheet is filed, the charges become final, and as the
  charges so framed were not so serious, the benefit of Act 1958
  has rightly been granted to the private respondents. Thus, the
G appeal is liable to be rejected.

         5. We have considered the rival submissions made by the
    learned counsel for the parties and perused the record.

       6. Filing of charge sheet and taking cognizance has
H nothing to do with the finality of charges, as charges framed
GIRRAJ PRASAD MEENA v. STATE OF RAJASTHAN 401
        & ORS. [DR B.S. CHAUHAN, J.]

after the cognizance is taken by the court, can be altered/           A
amended/changed and any charge can be added at any stage
upto the stage of conviction in view of the provisions of Section
216 Cr.P.C. The only legal requirement is that, in case the trial
court exercises its power under Sections 228/251 Cr.P.C., the
accused is entitled to an opportunity of show-cause/hearing as        B
required under the provisions of Section 217 Cr. P.C. (Vide:
Umesh Kumar v. State of A.P., JT 2013 (12) SC 213).

     7. In fact, the appellant has been raising the grievance from
the very beginning that the police has not been investigating         c
the case properly and for that purpose, he had also approached
the High Court by filing Writ Petition No. 14272 of 2009, wherein
several directions had been issued by the Division Bench of
the High Court of Rajasthan to the Director General of Police
for a fair investigation vide orders dated 10.2.2010 and              D
11.8.2010. In the statement of the appellant recorded under
Section 164 Cr.P.C. before the learned magistrate, appellant
has given a full version as to how he had been kidnapped while
returning from school duty and forcibly lifted by the private
 respondents and five others in a lnnova Car and was illegally        E
detained from 29.6.2009 till 4.7.2009 when he was located by
the police. Appellant named 7 persons and serious allegations
of criminal intimidation, threats, terrorising and causing phy~ical
 harm had been levelled. The police after concluding the
 investigation filed a charge sheet only against the two accused
 and, that too, only for the offences punishable under Sections       F
323 and 343 IPC.

     8. Had the trial court applied its mind to the material
collected during investigation and particularly the statement
recorded under Section 164 Cr.P.C., the charges could have            G
been framed also under Section 365 IPC. In that case, the
Gram Nyayalaya would have no jurisdiction to deal with the
matter as. the maximum sentence for that offence is 7 years
imprisonment with fine, and the Magistrate in that situation, was
bound to commit the matter to the Sessions court. Further,            H
    402      SUPREM~ COURT REPORTS               [2013) 10 S.C.R.


A before the statements of the witnesses could be recorded, the
  private respondents filed an application admitting their guilt.
  Had the statements of the witnesses been recorded, perhaps
  the court could have issued summons to other accused under
  Section 319 Cr.P.C. or charges could have been amended/
B altered/modified under Section 216 Cr.P.C. More so, at that
  stage, the appellant was not heard as no notice had been
  issued to him. The trial court proceeded in great haste and
  disposed off the matter on 15. 7 .2011 the same date when the
  application was filed by the private respondents.
c        9. On the said facts, we are of the considered opinion that
    the learned trial court proceeded not only in great haste, but
    adopted a procedure not known in law, and the judgment and
    order of the trial court therefore stands vitiated.

D       10. In State of U.P. v. Ranjit Singh, AIR 1999 SC 1201,
  this Court has held that the High Court, while deciding a criminal
  case and giving the benefit of the U.P. First Offenders'
  Probation Act, 1938, or similar enactment, has no competence
  to issue any direction that the accused shall not suffer any civil
E consequences. The Court has held as under:

                "5. We also fail to understand how the High Court
          while deciding a criminal case, can direct that the
          accused must be deemed to have been in continuous
          service without break and, therefore, he should be paid
F         his full pay and [dearness allowance] during the period
          of his suspension. This direction and observation is
          wholly without jurisdiction .... "(Emphasis added)
       11. In Shankar Dass v. Union of India & Anr., AIR 1985
G SC 772, this Court has held that the order of dismissal from
  service, consequent upon a conviction, is not a disqualification
  within the meaning of Section 12 of the Act 1958 observing as
  under:

          "4. ... There are statutes which provide that persons who
H
GIRRAJ PRASAD MEENA v. STATE OF RAJASTHAN 403
        & ORS. [DR. 8.S. CHAUHAN, J.]
    are convicted for certain offences shall incur certain A
    disqualifications. For example, Chapter Ill of the
    Representation of the People Act, 1951, entitled
    'Disqualifications for membership of Parliament and
    State Legislatures' and Chapter IV entitled
    'Disqualifications for Voting' contain provisions which s
    disqualify persons convicted of certain charges from
    being members of legislatures or from voting at elections
    to legislatures. That is the sense in which the word
    'disqualification' is used in Section 12 of the Probation
    of OffencJ.ers Act. [Therefore, it is not possible to accept c
    the reasoning of the High Court that Section 12 of the
    1958 Act takes away the effect of conviction for the
    purpose of service also. 11

     12. The provision of the Act 1958 has been dealt with15y
this Court elaborately in Sushi/ Kumar Singhal v. Regional D
Manager, Punjab National Bank, (2010) 8 SCC 573, wherein
after considering the judgments of this court in Aitha Chander
Rao v. State of A.P., 1981 Supp SCC 17; Harichand v.
Director of School Education, AIR 1998 SC 788; Divisional
Personnel Officer, Southern Railway & Anr. v. T. R. E
Chellappan, AIR 1975 SC 2216; and Trikha Ram v. V.K. Seth
& Anr., AIR 1988 SC 285, the court held as under:
    "In view of the above, the law on the issue can be
    summarised to the effect that the conviction of an F
    employee in an offence permits the disciplinary authority
    to initiate disciplinary proceedings against the employee
    or to take appropriate steps for his dismissal/removal
    only on the basis of his conviction. The word
    "disqualification''-contained in Section 12 of the 1958 Act G
    refers to a disqualification provided in other statutes, as
    explained by this Court in the abovereferred cases, and
    the employee cannot claim a right to continue in service
    merely on the ground that he had been given the benefit
    of probation under the 1958 Act. 11
                                                                H
    404       SUPREME COURT REPORTS                [2013] 10 S.C.R.

A   (See also: Karamjit Singh v. State of Punjab, (2009) 7 SCC
    178).
          13. Thus, we are also of the considered opinion that the
    trial court had no competence to make any observation having
    civil consequences so far as the private respondents are
8
    concerned.
          The High Court rejected the application under Section 482
    Cr.P.C. filed by the appellant only on the ground that the
    appellant neither challenged the order of taking cognizance nor
c   rais~d any objection at the time of reading over of the charges
    to the accused. The High Court failed to appreciate that before
    the statement of the appellant or any other witness could be
    recorded, the trial court disposed off the matter on the date
    when the application itself had been submitted admitting the
0   guilt. Even otherwise if the trial court wanted to entertain any
    issue of plea bargaining under Chapter XXl-A, inserted w.e.f.
    5.7.2006, then too the court was obliged thereunder to put the
    victim to notice before extending any such benefits that have
    been given in the present case. The procedure therefore
E   appears to have been clearly violated. Therefore, in the facts
    and circumstances of the case, the appellant had no opportunity
    to raise any grievance before the appropriate forum.
       14. In view of the above, the appeal succeeds and is
  allowed. The judgment and order of the trial court dated
F 15.7.2011 as well as of the High Court dated 23.4.2012 are
  set aside. The matter is remitted to the trial court to be decided
  afresh in accordance with law. As the matter is very old, we
  request the trial court to conclude the trial afresh adopting the
  procedure as explained hereinabove expeditiously, preferably
G within a period of six months from the date of filing certified copy
  of the order before it.
        Before.parting with the case, we would clarify that we have
    expressed no opinion on the merits of the ensuing trial.

H K.K.T: .                                          Appeal allowed.