ORDER
P.K. Tripathy, J.
1. Heard learned counsel for the petitioner. The opposite party has not entered appearance after service of notice.
2. Petitioner is the complainant in I.C.C. No. 175 of 1991 pending in the Court of Judicial Magistrate First Class, Khurda. On 11.10.1991 he filed a complaint petition alleging commission of offences Under Sections 427/448, IPC against the opposite party members who were the accused persons in that case. In the complaint petition, petitioner has stated that because of the demolition of the compound wall complainant sustained a loss of Rs. 2,000/- (two thousand). In his initial statement, however, petitioner did not state the amount of loss which he sustained. On 28.1 0.1 991, the S.D.J.M. after perusing the complaint petition and initial statement of the complainant took cognizance of the offences Under Sections 426/34, IPC. Thereafter, the accused appeared, accusation was explained to him as per the summons procedure and trial taken up. During the midst of the trial when three witnesses were examined which includes the complainant, his father, and one Sudarsan Baliar Singh, petitioner filed an application to alter the charge from Under Section 426 to Section 427, IPC. Learned Magistrate vide the impugned order dated 17.3.1994 rejected that petition on the ground that in a case governed by the summons procedure, since charge is not being framed, taking cognizance of the offence Under Section 427, IPC at such belated stage is not permissible under law. The other part of the impugned order in which learned Magistrate refused to exhibit the document is, however, not challenged in this revision and nothing is argued in that respect.
3. Learned counsel for the petitioner argues that the aforesaid view expressed by the learned Magistrate regarding legal impermissibility to change the offence is itself incorrect. He adds, complainant suffer prejudice, if cognizance of the offence Under Section 427, IPC, shall not be taken and explained to the accused. In that connection, he states that in the complaint it has been specifically mentioned that due to the mischief committed by the accused complainant suffered a damage of Rs. 2,000/- and therefore with due reference to the facts alleged cognizance of the offence Under Section 427, IPC should have been taken.
4. On a combined reading of the provisions of Sections 190 and 200, Cr.P.C. it is clear that at the stage of taking cognizance of the offence, the cognizance taking Magistrate pass appropriate order with due reference to the averments in the complaint petition, statement of the complainant recorded Under Section 200, Cr.P.C. and also statements of witnesses, if any, examined at that stage. In this case while taking cognizance of the offence Under Sections 426/34, IPC, learned Magistrate has not indicated as to why he did not take cognizance of the offence Under Section 427. To put it otherwise, on the face of the accusation stating the damage to be of Rs. 2,000/-, learned cognizance taking Magistrate did not explain why he took cognizance of the offence Under Section 426, IPC when the alleged damage was to the extent of Rs. 2,000/-. The aforesaid circumstance is noted only to indicate that the present prayer of the complainant is not an after thought built up at a subsequent stage.
5. Learned trying Magistrate has turned down the prayer of the petitioner on the ground that since a charge is not framed in a case governed under the summons procedure, alteration of the offence by invoking the provision Under Section 216, Cr.P.C. is not permissible. What is a charge and whether the provisions in Chapter XVII of Cr.P.C. are invocable in a case tried under Chapter XX, Cr.P.C. (Trial of Summons-cases by Magistrates) are the relevant questions crop up for adjudication.
6. In Section 2 relating to 'Definitions' Clause (b) provides that-
'(b) 'Charge' includes any head of charge when the charge contains more heads than one.'
It is clear from the above quoted provisions that the term 'charge' has not been defined but simply explained. In the context of Criminal Jurisprudence 'charge' means a precise formulation of specific accusations against the alleged offender of the offence or offences alleged to have been committed. In the case of Birichh Bhuian and Ors. v. State of Bihar : AIR 1963 SC 1120 the apex Court while defining the term 'charge' propounded that -
'........It is, therefore, clear that a charge is not an accusation made or information given in abstract but an accusation made against a person in respect of an act committed or omitted in violation of a penal law forbidding or commanding it. In other words it is an accusation made against a person in respect of an offence alleged to have been committed by him.'
7. The provision relating to 'Trial of Summons-cases by Magistrates' start with Section 251 which reads as below :
'251. Substance of accusation to be stated - When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.'
It is clear from the above quoted provision that in summonscases while explaining the accusation to the accused trial Court is not required to frame a formal charge but only the particulars of the offence is stated to the accused to make him understand the allegations and what offence such allegations constitute so as to enable the accused either to plead guilty or to claim for trial. In trial before a Court of Session or trial of Warrant-cases by Magistrates, as per the procedure, substance of the alleged offence is not only reduced to writing by framing charge in prescribed form but also the contents of the charge is read over and explained. Thus it is apparent that though framing of formal charge is not necessary in cases covered by Chapter IX of the Cr.P.C. but virtually charge is conceived from the materials on record and it is stated to the accused.
8. When that is the position of law, is a trial Court incompetent or without any power and jurisdiction to correct or alter the charge in a just case The obvious answer is in negative. In other words in a just and proper case the trial Court is not debarred to amend the charge and then to proceed with the trial in accordance with the provisions in Section 216, Cr.P.C. In support of the above stated principle it is profitable to refer to two decisions referred to at the time of hearing.
In the case of Indramani Pradhan and Ors. v. Chanda Bewa, AIR 1956 Ori. 191, this Court has held that -
'......Though in a summons case there is no formal charge, it is now well settled that the accusation made against the accused and intimated to him during his examination Under Section 242, Cr.P.C, takes place of a formal charge. It is also well settled that the principles of Sections 233 to 239, Cr.P.C, apply not only to warrant cases, but also to summons cases. See 'King Emperor v. San Dun', 2 Cri.L.J. 739 (FB) (B) and 'Emperor v. Amolak Mulchand'. 1933 Nag. 368 (AIR V 20) (C).'
(From paragraph 4 at page 192)
In the case of K. Shanmugasundara Pattar v. The State Inspector, Railway Police, Egmore, Madras, 1978 Cri.L.J. 468, a similar view has been expressed by the Madras High Court.
9. In view of the above stated position of law, there remains no doubt that the impugned portion of the order dated 17.3.1994 is not sustainable being contrary to the provisions of law. Hence, the impugned order in rejecting the petition filed Under Section 216,Cr.P.C. is set-aside and learned Magistrate is directed to hear the parties and pass appropriate order on that petition.
10. Before parting with the case, it is felt expedient in the interest of justice to make a few directions and observations in the matter.
It reveals from the lower Court's record that though complaint was filed on 11.10.1991 petitioner never showed his anxiety for an expeditious trial and proceeded with the case in a leisurely manner by producing witnesses in instalments and that to after considerable gap and several adjournments. At the fag end of the prosecution evidence, he filed the aforesaid petition Under Section 216, Cr.P.C. Though the actual allegation was well known to the complainant at the earlier stage he did not take the requisite steps for altering the charge. Even during the hearing, learned counsel for the petitioner could not state any reason much less a good reason for such inaction of the petitioner. After filing of this revision in 1994, petitioner never showed his anxiety for an early or expeditious disposal of this revision. As discussed above, when the law provides for alteration of the charge at any time before the judgment is pronounced petitioner's prayer, technically cannot be refused on the ground of aforesaid delay. Therefore, keeping in view all the above facts and conduct of the petitioner, this Court by exercising the inherent power Under Section 482, Cr.P.C. for the ends of justice authorises the trying Magistrate to impose suitable cost against the petitioner, in the event his application Under Section 216, Cr.P.C. will be allowed. Such cost, if will not be paid within the time stipulated, then it may be realised in the manner of realisation of fine. If such cost is paid or realised, the same be paid to the accused persons.
Since the case is of the year 1991, petitioner's application shall be disposed of within seven days from the date of receipt of the L.C.R. with a copy of this order and therafter further trial be taken up within a fortnight thereafter. Petitioner shall be directed to produce all his witnesses and evidence and the trial may be pursued without granting undue and improper adjournments. Petitioner shall appear before the trial Court by 28.1.2000 and he shall not be entitled to fresh or further notice. In the event of default in appearance consequences may be followed and further orders passed in accordance with the procedural law. Registry is directed to immediately send back the L.C.R. to the lower Court with a copy of this order.
The Criminal Revision is allowed in the aforesaid manner.