New Delhi, Oct. 2: Courts have a duty to issue notice to the complainant if the accused are to be pardoned, the Supreme Court has held, asserting that charges in criminal cases can be altered at any stage up to the conviction.
The apex court disapproved of the conduct of a trial court and Rajasthan High Court in granting pardon to some people who had allegedly kidnapped a schoolteacher, Giriraj Prasad Meena, and kept him in illegal custody for about five days.
A bench of Justices B.S. Chauhan and S.A. Bobde found fault with the trial court for framing charges under Sections 323 (causing hurt) and 343 (wrongfully confining for three or more days) instead of Section 365 (kidnapping or abducting).
The kidnapping charge carries a maximum punishment of seven years in jail. Section 323 carries a maximum punishment of one year in jail or a fine or both, and Section 343 is punishable with two years’ imprisonment.
Under the Probation of Offenders Act, pardon can only be granted to anyone found guilty of an offence punishable with imprisonment up to two years. A convict granted pardon can lead a normal life but under the watchful eyes of a probation officer, who has to see that the convict does not do anything illegal and carries out social work as directed by the judge.
In this case, the teacher was allegedly kidnapped and illegally detained from June 29, 2009, to July 4, 2009, following a civil dispute and was threatened his limbs would be chopped off. He was rescued by police who, however, booked cases only under Sections 323 and 343 instead of Section 365.
On July 15, 2011, the judicial magistrate of Sawai Madhopur district pardoned the accused after they pleaded guilty. The magistrate concluded the trial the same day without issuing a notice to the appellant, convicting the accused and granting their plea for pardon. The accused were fined Rs 500 each under the Probation of Offenders Act and it was ruled that the order passed in the criminal case shall not have any adverse affect on the government service of the accused.
The teacher appealed against the pardon in the high court, which on April 23, 2012, dismissed his appeal. The high court said he could not now raise the issue of non-framing of kidnapping charges against the accused and that there was no merit in his plea that the accused cannot be pardoned.
Aggrieved, he appealed in the apex court. Upholding his appeal, the court said: “Filing of chargesheet and taking cognisance has nothing to do with the finality of charges, as charges framed after the cognisance is taken by the court can be altered/amended/changed and any charge can be added at any stage up to the stage of conviction in view of the provisions of Section 216 CrPC.”
Although the victim had named seven persons and made serious allegations, the police preferred to register only cases under Sections 323 and 343 IPC. “Had the trial court applied its mind to the material collected during investigation and particularly the statement recorded under Section 164 CrPC (victim), the charges could have been framed also under Section 365 IPC (kidnapping),” it said.
“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,” Justice Chauhan, writing the judgment, said.
The bench said the high court failed to appreciate that before the statement of the appellant or any other witness could be recorded, the trial court disposed of the matter.
“Even otherwise if the trial court wanted to entertain any issue of plea bargaining (pardon), then too the court was obliged thereunder to put the victim to notice before extending any such benefits,” the apex court said, sending the matter back to the trial court.