TMI Blog1993 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against the petitioner in view of the evidence on record and accordingly discharged the accused under Section 227 Cr.P.C. The question that falls for consideration on this revisional application is whether the Court of Session can discharge an accused under Section 227 Cr.P.C. by reconsidering the charge earlier framed against the accused under Section 228 Cr.P.C. The learned Additional Sessions Judge, it appears, was of the view that Section 362 Cr.P.C. only refers to a judgment or final order disposing of a case and is not applicable to other orders, such as, an order framing charge and consequently a charge already framed is always open to be reconsidered even on the basis of the self-same materials on which the charge was framed earlier and in a fit case) on such reconsideration the Court of Session can discharge the accused even before any evidence is taken in the trial of the case. Section 362 Cr.P.C. runs thus: 362. Court not to alter judgment.-Save as otherwise provided by this code or any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had reached the stage of evidence, when accused No. 1 had filed an application for discharge. He also submitted that the learned trial Judge has rightly rejected the application on the ground of delay. This submission is only to be mentioned for being rejected. The accused is entitled to ask for discharge from the prosecution at any stage and there is no time limit for filing such an application. Delay even can be overlooked because a right to ask for discharge is always available to an accused at any stage of a trial. It must be borne in mind that the accused is not guilty, unless he is proved to be so and if he is able to point out even before the commencement of the trial that he has been falsely implicated and involved in the trial and that there is no prima facie case against him, he is at liberty to ask for discharge . In my opinion the import of the observations made above by the learned Single Judge of the Bombay High Court is confined and should be confined only to exercise of power by the High Court for discharging an accused at any stage if the facts and circumstances so warrant. There is no doubt that Section 482 of the Cr.P.C. gives wide power to the High Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontemplates 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 obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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