Ghanshyam vs State of U.P. and Others

Vinod Prasad, J.—Heard learned Counsel for the revisionist and the learned A.G.A.

Learned Counsel for the revisionist has filed the affidavit today in Court after serving its copy on the learned A.G.A. The said affidavit is taken on record.

This revision relates only to the legal question. This question is being decided at the stage of admission itself. The revisionist is the informant of a Sessions Trial No. 210 of 2004, State v. Brij Lal and Ors. under Sections 147, 148, 149, 302, 307, I.P.C., P. S. Kotwali, Dehat, district Mirzapur. The charge against the accused were framed u/s 304, I.P.C. The prosecution examined the witnesses including P.W. 9 doctor Govind Prasad and P.W. 3 doctor R. K. Srivastava. The aforesaid two doctors in their deposition before the Court clearly stated that the injuries sustained by the two deceased persons were sufficient in the ordinary course of nature to cause death. The prosecution filed an application to amend the charge from Sections 304 to 302, I.P.C. The said prayer has been rejected by the Additional Sessions Judge Fast Track Court No. 1 Mirzapur in S. T. No. 210 of 2006.

Learned Counsel for the revisionist contended that the impugned order is wholly illegal and cannot be sustained in the eyes of law. He submitted that charge can be altered at any stage before judgment is pronounced. He further submitted that the trial court did not look into the merits of the matter and by making a wrong observation he has dismissed the application for amending the charge.

Learned A.G.A. on the other hand contended that the trial court has passed the order as on the earlier occasion also the application for amending the charge was rejected.

I have gone through the impugned order. In my view the impugned order cannot be sustained on the simple premise that the trial Judge rejected the application because of bar u/s 362, Cr. P.C. Needless to say that an order framing of charge or amendment of charge is not a final order, it does not amount to disposal of case. Additional Sessions Judge Fast Track Court No. 1, Mirzapur probably does not seem to be oblivious of law. So far as final judgments are concerned it is provided that no Court shall alter the judgment or final order disposing of a case. Alteration of a charge or disposal of an application for altering the same in no way is disposal of case nor it is a judgment. The judgment as contemplated u/s 362, Cr. P.C. is referable to the judgment, which provided Chapter XXVII, Cr. P.C. The trial court committed a manifest error of law in rejecting the application of the prosecution for amendment of the charge.

In view of what has been said above, the impugned order dated 13.10.2006 passed by Additional Sessions Judge F.T.C.-1, Mirzapur in S.T. No. 210 of 2004, State v. Brij Lal and others under Sections 147, 148, 139, 302 and 307, I.P.C., P.S. Kotwali Dehat, district Mirzapur cannot be sustained and is hereby set aside. The matter is remanded back to the trial court to consider the application of the prosecution for amendment of the charge afresh and decide it in accordance with law.

With the aforesaid direction this revision is allowed at the admission stage itself.