APHC010289862023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] TUESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 526/2023 Between: 1. P.V.MURALI MOHAN RAO, S/O. LATESATYANATAYANA, AGED ABOUT 76 YEARS, R/O.D.NO. 7-5-13, PANDURANGAPURAM, VISAKHAPATNAM- 530003 ...PETITIONER AND 1. KANURI JAGADISH PRASAD, S/O. LATE K.L.N.PRASAD, AGED ABOUT 60 YEARS, R/O. PLOT NO.6, ROAD NO.72, PRASASAN NAGAR, HYDRABAD, TELANGANA. 2. THE STATE OF ANDHRA PRADESH, REP BY ITS PUBLIC PROSECUTOR, THROUGH VISAKHAPATNAM III TOWN POLICE STATION, HIGH COURT OF ANDHRA PRADESH AT AMARAVATI. ...RESPONDENT(S): Counsel for the Petitioner: 1. KALEPU YASHWANTH Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR (AP) 2. MUJTAHID HUSSAIN 3. LEGAL AID The Court made the following: 2 JUDGMENT: This Criminal Revision Case has been filed, under Sections 397 and 401 of the Code of Criminal Procedure (for short, 'the Cr.P.C.'), by the petitioner-de facto complainant against the order dated 07-02-2023 in Criminal M.P.No. 76 of 2020 in S.C.No 60 of 2017 on the file of the Court of learned Special Sessions Judge for trial of cases under the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act – cum – XI Additional District Judge, Visakhapatnam (for short, 'the learned trial Court'), whereby and whereunder the above miscellaneous petition filed by respondent No. 1- accused, under Section 227 of 'the Cr.P.C.', for discharging him from the above sessions case was allowed. 2. Heard learned counsel appearing for the petitioner-de facto complainant, learned Assistant Public Prosecutor appearing for respondent No. 2-State and learned legal aid counsel appearing for respondent No. 1- accused. 3. The petitioner is aged about 76 years. He is de facto complainant in this case. Sri Ismail, learned counsel, representing Sri Kalepu Yashwanth, learned counsel appearing for the petitioner, submits that the learned trial Court framed charges against respondent No. 1-accused on 13-04-2018 and the impugned order was passed on 07-02-2023. Learned counsel submits that once charges are framed, question of discharging under Section 227 of 'the Cr.P.C.' would not arise. In support of his submission, learned counsel places reliance on the judgment of High Court of Calcutta in Tapati Bag v. 3 Patitpaban Ghosh and others1, wherein it was held at para Nos. 2, 3 and 5 as under: "2. The procedure regarding the trial in a Court of Session is contained in Chapter-XVIII of the Criminal Procedure Code consisting of Section 225 to Section 237. Section 226 provides for opening of case for the prosecution when the accused appears or is brought before the Court of Session in pursuance of commitment of the case. Section 227 provides that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused in that case he shall discharge the accused and record his reason for so doing. Section 228 relates to framing of charge. The said section inter alia provides that if after such consideration and hearing as aforesaid, that is, such consideration and hearing as mentioned in Section 227 the Judge is of opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by the Court of Session, he shall frame a charge against the accused and the charge shall then be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. Section 230 provides that if the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under Section 229, the Judge shall fix a date for the examination of witnesses or the production of any document or other thing. Section 231 provides inter alia that on the date so fixed as mentioned in Section 230 the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. There are other provisions in the following sections as to how the trial is to proceed thereafter unto conclusion resulting in 1 (1993) 1 Cal LT 468 4 acquital or conviction of the accused. It is needless to mention, therefore, that when elaborate provisions have been made as to how a trial has to start, proceed and conclude, it is incumbent that the Court must follow the procedure, prescribed by the law and must not deviate from the prescribed procedure by inventing or introducing a new procedure not provided by law. 3. From the provisions mentioned above it will appear that the law provides that on considering the relevant materials if the Court considers that there is no sufficient ground for proceeding against the accused then the accused has to be discharged, but if the Court is of opinion on such consideration that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session then charge has to be framed against the accused. It is needless to mention that the question whether charge should be framed against the accused or he should be discharged has to be considered simultaneously and if on such consideration the Court thinks that the accused should not be discharged and rather charge should be framed against him, in that case the charge has to be framed against the accused. It is evident from the scheme of the provisions of the Chapter-XVIII of the Criminal Procedure Code as well as from the logic of the sequence that once the Court decides to frame charge under Section 228 Cr.'P.C. there is no question of discharging him at a later stage by exercising the power under Section 227 Cr.P.C. Once charge has been framed under Section 228 the trial has to proceed according to the procedure provided in the sections following the Section 228 Cr.P.C, and the process cannot be put to back-gear for discharging the accused thereafter under Section 227 Cr.P.C. where a charge has been framed by the Court of Session under Section 228, the said Court thereafter cannot discharge the accused under Section 227 Cr.P.C. Even if an accused against whom a charge has been framed under Section 228 Cr.P.C. feels aggrieved by the framing of charge he has either to face the trial or he may approach the High Court in its revisional jurisdiction. If the Court of 5 Session remains free to discharge an accused on reconsideration under Section 227 even after a charge has been framed under Section 228, in that case it would be open to the accused persons against whom charge has already been framed to move the same Court one after another for reconsideration and discharge on repeated occasions thereby making it practically impossible to proceed with the trial of the case expeditiously or at all, even if such moves lack merit. 5. The learned Advocate for the petitioner attracted my attention to the provisions of Section 216 Cr.P.C. and argued that the said section empowers any court to alter or add to any charge at any time before judgment is pronounced and this gives an implied power to discharge an accused at any stage. For proper appreciation of the scope of the provisions of the said Section 216 the same is quoted below: "216. Court may alter charge.-(1) Any court may alter or add to any charge at any time before judgment is pronounced. (a) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) if the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded". 6 A plan reading of the said section would show that the alteration or addi- tion referred to therein contemplates modification, of or addition to charge but not discharging an accused in respect of a charge already framed so as to bring the trial itself to an end in respect of such accused. There may be addition of a new charge or even substitution of a charge in an appropriate case but Section 216 does not contemplate discharge of an accused or the termination of the trial in respect of any accused. Sub-section (2) requires that every alteration or addition to a charge has to be read and explained to the accused. The question of reading and explaining such alteration or addition would be meaningless in a good number of cases if discharge is contemplated by such alteration or addition. Sub-sections (3) and (4) speak of proceeding with the trial or of directing a new trial or adjourning the trial. This also is a clear indication that any alteration or addition to charge shall not be of such nature as to get the accused discharged and bring the trial to an end in respect of that accused, sub-section (5) requires that where the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained on the same facts. Here also the sub-section contemplates of proceeding with the trial with fresh sanction, if necessary, and not ending the trial in respect of any accused by any obliteration of the charge. It is therefore evident that Section 216 does not empower the court to discharge an accused and bring the trial itself to an end in respect of an accused against whom a charge has already been framed, without following the procedure prescribed in the Code regarding the trial of a case. Of course there are certain independent provisions prescribed in the Code itself which when brought into play in any particular case may result in ending the trial at an intermediate stage, as for example, where the prosecution is withdrawn with the consent of the court under Section 321 or when an offence is validly compounded during trial under Section 320, but Section 227 being designed for a particular stage of the judicial proceeding one cannot revert to that provision when that stage has already been crossed. I am therefore clearly of the opinion that the Court of Session has no power to discharge an accused under Section 227 once a charge under Section 228 has already been framed. The learned Additional Session 7 Judge was, therefore, clearly in error in discharging the accused opposite party under Section 227 Cr.P.C, by his impugned order dated the 20th November, 1990 after charge had already been framed against the accused under Section 228 Cr.P.C. at an earlier stage. The impugned order of the learned Additional Sessions Judge is accordingly set aside and the learned Additional Sessions Judge is directed to proceed with the trial in accordance with law. The revisional application stands allowed accordingly." 4. Indeed, the question of discharge of petitioner or accused would arise only before framing of charges, it may be under Section 227 of 'the Cr.P.C.' or 239 of 'the Cr.P.C.' 5. In Ratilal Bhanji Mithani v. State of Maharashtra and others2, the Hon'ble Apex Court at para Nos. 27 and 28 categorically held that discharge would arise only before framing of charges. Para Nos. 27 and 28 are extracted hereunder: "27. From the scheme of the provisions noticed above, it is clear that in a warrant case instituted otherwise than on a police report, 'discharge' or 'acquittal' of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of 'discharge' and 'acquittal' are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253 (1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub- section (2) which authorizes the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without 2 (1979) 2 SCC 179 8 considering the evidence taken is illegal. If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused. Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, he Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case. 28. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only in inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973)." 6. Similarly, in Directorate of Revenue Intelligence v. Raj Kumar Arora and others3, the Hon'ble Apex Court held at para No. 154 that once charges are framed under 228 of 'the Cr.P.C.', accused cannot thereafter be discharged by invoking the power under Sections 227 or 216 of 'the Cr.P.C.'. Para No. 154 is extracted hereunder: "154. We are in agreement with the view that once charges have been framed by the Trial Court in exercise of the powers under Section 228 Code of Criminal Procedure, the Accused cannot thereafter be discharged, be it through an exercise of the powers Under Sections 227 or 216 Code of Criminal Procedure. It is reiterated that the 3MANU/SC/0500/2025 9 language of Section 216 Code of Criminal Procedure provides only for the addition and alteration of charge (s) and not for the deletion or discharge of an accused. If the Legislature had intended to empower the Trial Court with the power to delete a charge at that stage, the same would have been expressly and unambiguously stated. Therefore, at such a stage of the trial, the accused must necessarily either be convicted or acquitted of the charges that were so framed against him. No shortcuts must be allowed." 7. In view of the law laid down by the Hon'ble Apex Court in Ratilal Bhanji Mithani (2nd supra) and Raj Kumar Aora (3rd supra), the order of the learned trial Court is perverse and illegal. Therefore, the order is liable to be interfered with and set aside. 8. Accordingly, the criminal revision case is allowed setting aside the order dated 07-02-2023 in Criminal M.P.No. 76 of 2020 in S.C.No. 60 of 2017 on the file of the Court of learned Special Sessions Judge for trial of cases under the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act – cum – XI Additional District Judge, Visakhapatnam. Pending miscellaneous applications, if any, shall stand closed in consequence. No order as to costs. _______________________ Dr. Y.LAKSHMANA RAO, J. Date: 07-10-2025, JSK 10 HONOURABLE Dr.JUSTICE Y.LAKSHMANA RAO CRIMINAL REVISION CASE No. 526 OF 2023 DATE: 07-10-2025 JSK