Mohammad Nissar Chandsab Mulla vs State of Karnataka

G. Patribasavan Goud, J.—Petitioner is facing prosecution for offences punishable under Sections 465, 468 and 201 of the IPC before the learned Judicial Magistrate First Class, Hukeri at CC No. 831 of 1994. The stage of Section 239/240 of the Cr. P.C. is yet to be reached. Before that stage, the complainant State filed an application before the learned Magistrate u/s 216 of the Cr. P.C. seeking addition to the charge for the offence u/s 471 of the IPC. Learned Magistrate dismissed it. State''s revision has been allowed by the learned Sessions Judge. Petitioner-accused is before this Court.

Learned Magistrate as well as the learned Sessions Judge have unnecessarily referred to Section 468 of the Cr. P.C., and it is on interpretation of the said provision in one way that the learned Magistrate has dismissed the State''s application and in another way that the learned Sessions Judge has allowed the State''s revision petition. Reference to Section 468 of the Cr. P.C., in my opinion, is misplaced. As said earlier, the stage of Section 239/240 of the Cr. P.C. has yet to be reached. As and when that stage is reached, it would be for the learned Magistrate, on consideration of the police report and the documents sent with it u/s 173 of the Cr. P.C. and making such examination, if any, of the accused as the Magistrate thinks necessary, and after affording the prosecution and the accused an opportunity of being heard, to come to the conclusion that the charge against the accused is groundless, in which event he would discharge the accused, or to come to the conclusion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Cr. P.C., which he is competent to try, and, which, in his opinion, could adequately be punished by him, in which event, he would frame charge in writing against the accused. In course of this exercise, learned Magistrate is not to be bound by the sections mentioned in the charge-sheet or by the absence of mentioning of a particular offence in the charge-sheet. In the event he comes to the conclusion that the charge needs to be framed, he would do so on the basis of the above said material on record and not on the basis of the specific sections mentioned in the charge-sheet. If he thus comes to the conclusion that the charge needs to be framed, he would also come to the conclusion as to for what offence/s charge needs to be framed. In course of that exercise, even if charge needs to be framed for a particular offence, not earlier mentioned in the charge-sheet, reference to Section 468 of the Cr. P.C., would be totally unnecessary. Learned Magistrate can still proceed to frame charge for whatever offences for which charge needs to be framed, and in respect of which, according to the learned Magistrate, there is ground presuming that the accused has committed the said offence/s triable under Chapter XIX of the Cr. P.C., which he is competent to try, which, in his opinion, could be adequately punished by him. This being the position, the State''s application has unnecessarily come to be considered. Such an application at that stage could not have been filed at all. Added to that, the said application purports to be u/s 216 of the Cr. P.C. The said provision of Section 216 of the Cr. P.C. speaks of adding to or altering any charge. It presupposes that the charge is already framed and it is only then that something can be added to it or it could be altered, as stated earlier. If the case has not reached the stage of Section 239/240 of the Cr. P.C., and if initially even the charge has not been framed, the question of invoking Section 216 of the Cr. P.C. for the purpose of adding to or altering the charge, does not arise.

In view of the above discussion, the application filed by the State u/s 216 of the Cr. P.C. is dismissed. At the same time, it is made clear that after complying with Section 239/240 of the Cr. P.C. if the learned Magistrate conies to the conclusion that along with other offences, charge needs to be framed even for Section 471 of the IPC, then, he would be free to do so.

Petition is accordingly disposed of.