Bhagwan Dass vs State of Madhya Pradesh

S.M.N. Raina, J.

This is a revision petition against an order amending the charge in a session case.

A challan u/s 302 of the Indian Penal Code was presented against the petitioner in the Court of Magistrate First Class, Sagar. The Magistrate committed the petitioner to the Court of Session for trial on a charge u/s 304 (Part II) of the Indian Penal Code. The learned Additional Sessions Judge while trying the petitioner amended the charge and altered it to one u/s 302 of the Indian Penal Code. Being aggrieved thereby the petitioner has come up in revision before this Court.

The main point that was urged by the learned counsel for the petitioner was that the committing Magistrate having discharged the petitioner of the major offence u/s 302 of the Indian Penal Code, the Additional Sessions Judge was not competent to alter the charge to one u/s 302 of the Indian Penal Code. I am, however, not impressed by this argument.

Once an accused is committed to the Court of Session for trial the Court has plenary powers to frame a proper charge and his powers are not, in any way, limited or circumscribed by the charge framed by the committing Magistrate. Section 226 of the Code of Criminal Procedure provides that when a person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in the Code as to the form of charges. Section 227 of the Code of Criminal Procedure also empowers the Court to alter or add to any charge at any time. It is no doubt true that the amendment or alteration of the charge is permissible only where the amended charge is covered by the indictment but the Court is not prevented from amending the charge merely because it is for a major offence than the one for which the charge has been framed by the committing Magistrate. Once a Court of Session is properly seized of a case it is competent to frame a proper charge covered by indictment on the basis of the material on record.

Learned counsel for the petitioner relied on the decision of the Nagpur judicial Commissioner''s Court in Ganga Datta and others v. Emperor AIR 1936 Nag. 87 . In that case although challan put up by the police was u/s 325 of the Indian Penal Code, charge u/s 323 of the Indian Penal Code was framed against the accused. In these circumstances it was held that the action of the Magistrate amounted to discharge of the accused with regard to the major offence. Similarly In Re: Randhir and Another, in a case u/s 307 of the Indian Penal Code the committing Magistrate instead of committing the accused to the Court of Session for trial proceeded himself to try him on a charge under sections 325 and 323 of the Indian Penal Code. It was held that it amounted to implied discharge of the accused in respect of the major offence. The theory of implied discharge is however applicable only in cases where no order of commitment has been made. Where commitment has been made the Sessions Judge is fully seized of the case and is competent to frame a proper charge in view of sections 226 and 227 of the Code of Criminal Procedure.

Even if the framing of a charge for a minor offence by the committing Magistrate is considered as an implied discharge by the committing Magistrate in respect of the major offence, the Court of Session is competent u/s 437 of the Code of Criminal Procedure to direct the commiting Magistrate to commit the accused for trial on the major offence. But resort to section 437 of the Code of Criminal Procedure is necessary only where there is no commitment to the Court of Session. Once a case is committed to the Court of Session, the Court is competent to frame a proper charge. In fact it is the duty of the Sessions Judge to see that a proper charge is framed before the accused is called upon to plead. If the charge framed by the committing Magistrate is not proper, it should be duly amended subject, however, to the condition that the amendment should not be foreign to the indictment and should be supported by the material on record.

The Additional Sessions Judge has given good reasons for framing a charge u/s 302 of the Indian Penal Code and I find no justifiction for interference in revision.

The petition, therefore, fails and is hereby summarily dismissed.