JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. By an order dated the 25th August, 1988 the learned Additional Sessions Judge, 1st Court, Suri framed charge against the accused opposite party No. 1 under Section 376 I.P.C. for committing rape on one Smt. Tapati Bag. The learned Additional Sessions Judge also took the plea of the accused on that charge and the accused pleaded not guilty and claimed to be tried. It is obvious that the learned Additional Sessions Judge framed the charge and took the plea of the accused by exercising the power conferred by Section 228 of the Code of Criminal Procedure. Subsequently, on 6th November, 1990 the accused filed a petition before the learned Court of. Additional Sessions Judge for reconsideration of charge and on that petition the learned Additional Sessions Judge by his order dated the 20th November, 1990 reconsidered the question of framing of charge and on reconsideration of the materials was of the view that no framing of charge was warranted 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 arithmetical error”.
There is no doubt that Section 362 refers to judgment or final order disposing of a case, but that does not mean that while judgment or final order disposing of a case cannot be reviewed by the court passing the same except as provided by law, all other orders can be reviewed by the court at any time or in any manner. The question whether the court which has already framed a charge under Section 228 Cr.P.C. can thereafter reconsider the charge and discharge the accused under Section 227 Cr.P.C. has to be examined not in the light of the provisions of Section 362 Cr.P.C. which deals with only judgment and final order disposing of a case but in the background of the other provisions relevant in this connection.
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 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 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.
4. The learned Advocate for the petitioner attracted my attention to the decision of a learned Single Judge of the Bombay High Court in Babu Rao Hari Power v. State of Maharastra, 1987 Cr LJ 584. There also after a charge was framed by the Court of Session the accused moved the same court by filing an application for discharge. The learned Sessions Judge rejected that application for discharge of the accused at that stage. The matter was then taken before the High Court. The High Court of Bombay made the following observations in paragraph 15 (ibid):
“15. The learned Public Prosecutor also urged that the trial 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 pass such order at any stage as may be considered necessary for securing the ends of justice or for preventing the abuse of process of the court. But the Court of Session or the Court of Magistrate, not having such wide power as the High Court has under Section 482 Cr.P.C, cannot, in my opinion, discharge an accused except in accordance with the procedure prescribed by the law. As I have already pointed out while discussing the scheme of the provisions relating to trial in a Court of Session that once a charge has been framed under Section 228 Cr.P.C, the Court of Session can not at a later stage take recourse to Section 227 for discharging the accused.
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”.
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 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.