M.Y. Eqbal, J.
1. This application under Section 482 of the Code of Criminal Procedure has been filed praying for issuance of an appropriate direction to the 3rd Additional Sessions Judge, Arrah, to frame charge under Section 307 of the Indian Penal Code against the accused persons in Sessions Trial No. 362 of 1997 as the cognizance under Section 307 of the Indian Penal Code besides other sections was taken by the Chief Judicial Magistrate, Arrah, on 23.9.1996 in Arrah Mofassil P.S. Case No. 41 of 1996 and the case was committed to the Court of Sessions.
2. It appears that on the basis offardbeyan given by the petitioner on 4.4.1996 a case was registered against the accused persons on the allegation that on 4.4.1996 when the petitioner reached home after lodging case and getting himself treated with Sita Ram Singh, then Latua Singh and Krishna Singh assaulted them again and Binda Singh abated to kill all. It is also alleged that accused persons started assaulting Sita Ram when his head was injured. Several other allegations have been made. The case was investigated by the police and thereafter, charge-sheet was submitted under Sections 147, 148, 448, 323, 307 and 304 of the Indian Penal Code against the accused persons. The Chief Judicial Magistrate took cognizance of the offence punishable under the aforesaid Sections on 23.9.1996 and the case was committed to the Court of Sessions. The accused persons then filed a petition in the Sessions Court in the aforementioned Session Trial No. 362 of 1997 under Section 228 of the Code of Criminal Procedure stating that no case under Sections 307 and 304 of the Indian Penal Code is made out against the accused persons so the case may be remitted back to the Court of the Chief Judicial Magistrate. The said prayer was opposed by the petitioner-informant by filing objection. The learned Sessions Judge after hearing the parties and considering the materials on record passed an order on 31.3. 1998 holding that the case under Sections 307 and 304 of the Indian Penal Code has been made out. The petitioner's case is that despite the aforesaid order surprisingly the trial Court vide order dated 12.5.1998 did not frame charge under Section 307 of the Indian Penal Code against the accused persons, which amounts to review of its own order dated 31.3.1998 and as such the order dated 12.5.1998 passed by the learned Addl. Sessions Judge is illegal, improper and unjust.
3. I have heard Mr. Pramod Mishra, learned Counsel appearing on behalf of the petitioner, Mr. Rana Pratap Singh, learned Senior Counsel appearing on behalf of the opposite party Nos. 2 to 4 and learned Addl. Public Prosecutor appearing for the State.
4. Mr. Rana Pratap Singh, learned Senior Advocate appearing for the accused persons, in course of argument referred to Sections 216 and 225 of the Code of Criminal Procedure and submitted that the charges may be alterated added at any time during trial and therefore, no illegality has been committed by the Court below in not framing charge under Sections 307 and 304 of the Indian Penal Code. Learned Counsel further submitted that the petitioner who is the informant have no locus standi to challenge the impugned order as the Public Prosecutor is only competent to brought to the notice of the Court as to the charges which he proposes to prove. I do not find any force in the submission of the learned Counsel. Sections 216 and 225 of the Code are two different provisions applicable in different stages of trial. Section 216 of the Code finds place in Chapter XVIII of the Code which deals with charges. Section 216 of the Code reads as under:
216 (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) 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.
5. This provision confers ample power to the Courts to alter or amend a charge provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or is not giving him a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him. It is well settled that the Court may alter or add to the charge at any time before judgment is pronounced. It may be done even at the appellate stage before the pronouncement of the judgment of appeal. But, it must exercise a sound and wise discretion in doing so. In the instant case, the provision of Section 216 of the Code has not application at all. As noticed above, after full investigation by the investigating agency a charge-sheet was submitted against the accused persons under Sections 147, 148, 448, 323, 307, 337 and 304 of the Indian Penal Code. After submission of the charge-sheet, the Chief Judicial Magistrate examined the materials and evidence and took cognizance of the offence under the aforementioned sections including Sections 307 and 304 of the Indian Penal Code. Against the order taking cognizance, the accused persons filed Cr. Misc. No. 485 of 1997 before this Court which was dismissed as withdrawn after some arguments by order dated 8.8.1997. It further appears that the accused persons then filed a petition on 4.3.1998 before the 3rd Additional Sessions Judge, Arrah under Section 228 of the Code stating that no case under Sections 307 and 304 is made out, against them. So the case may be remitted to the Court of the Chief Judicial Magistrate. The said petition was opposed by the informant-petitioner and the learned Court below after hearing the parties and after considering the entire materials on record passed a reasoned order holding that prima facie case has been made out against the petitioners for committing offences under Sections 307 and 304 of the Indian Penal Code and the petition was accordingly rejected. But, surprisingly while framing charge by the impugned order the Court below omitted Sections 307 and 304 of the Indian Penal Code without assigning any reason. From the impugned order it does not appear that the Court below is of the opinion that no case for framing charge under Sections 307 and 304, I.P.C. is made out against the accused persons. The impugned order has been passed in routkie manner and there is total lack of application of mind.
6. The second submission of Mr. Rana Pratap Singh, learned Senior Advocate appearing for the opposite party Nos. 2 to 4 is that the petitioner has no locus standi to challenge the impugned order as it is the Public Prosecutor who is competent to ask the Court as to under which section the accused persons should be prosecuted is devoid of any substance. Section 225 of the Code simply says that in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor. Section 226 provides that when the trial commence the Public Prosecutor will open his case before the Court of Sessions by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. It does not appear from the impugned order that it was the case of the prosecution that no charge can be framed under Sections 307 and 304, I.P.C.
7. Having regard to the facts and circumstances of the case and discussions made above, I am of the opinion that the impugned order passed by the Court below is bad in law and is liable to be quashed. This application is accordingly allowed and the impugned order passed by the Court below is set aside and the matter is remitted back to the Court below with a direction to pass a fresh order of framing of charge in the light of the discussions made above.