1. The petitioners are the original accused. They have challenged an order dated 6.3.2010 passed by learned Additional Sessions Judge and Presiding Officer, Visnagar.
2. Facts of the case are as follows :
2.1 Against the petitioners complaint being C.R.No. I-107/2006 was lodged. Sessions Court on 10.11.2008 framed the charges against the petitioners for various offences namely, Sections 147, 148, 307, 326, 337, 504, 451 of the IPC as also Section 429 of the IPC and Section 135 of the Bombay Police Act. Sessions Court however, while framing charge did not include Section 149 of IPC against accused though said provision was included in the charge-sheet. Trial was conducted. Evidence was recorded. Case was kept for oral arguments. At that stage, the impugned order dated 6.3.2010 came to be passed by learned Judge by which he was pleased to order framing of charge under Section 149 of the IPC also. He order recalling of witnesses for recording their further evidence and cross examination. It is this order that the present petitioners are challenging in the present petition.
3. Counsel for the petitioners vehemently contended that no case for offence under Section 149 was made out from the material on record. In any case, the charge was framed excluding Section 149 after proper application of mind. Such order could not have been changed subsequently which would amount to reviewing the previous order. He further submitted that reasoning adopted by learned Judge in the impugned order is also fallacious.
4. Learned APP on the other hand submitted that it would be open for the Court to alter charge at any stage of trial. In short, he opposed the petition.
5. Upon hearing counsel for the parties and perusal of the documents on record, it emerges that while framing charge, there is no indication that the Court consciously excluded Section 149 of the IPC. It would therefore, not be possible to cull out whether such exclusion was intentional or through oversight. Be that as it may, it was always open for the Court to alter the charge at any stage of trial if facts so warranted. In the present case, broadly allegations are that accused quarreled with the complainant and his family members and assaulted them with different weapons and also threw stones, causing injuries to the complainant and others. In the present case, therefore, I am of the opinion that learned Judge committed no error in adding charge under Section 149 of the IPC which in essence makes all members of an unlawful assembly equally responsible for acts done by others. At this stage of framing of charges, there was in my opinion sufficient material to sustain the order passed by the trial Court. It is true that reference to decision of Apex Court in case of AIR 2000 Supreme Court 1456 was erroneous. However, that by itself would not render the entire order infructuous.
6. In the result, petition fails. Same is dismissed. Interim relief, if any, stands vacated. Notice is discharged.