Munna Lal Agrawal vs State of U.P. and Another

B.K. Rathi, J.—The Petitioner is an accused in Case No. 203 of 1999, State v. Pradeep Kumar and others, pending in the Court of A.C.J.M. II, Bulandshahr. The F.I.R. of the incident was lodged by Vinay Agrawal as Crime No. 10 of 1997 at police station, Gulaothi, district Bulandshahr, for offences under Sections 304B, 201, 498A, Indian Penal Code and 3/4 D. P. Act. The Petitioner is the father-in-law of the victim. After investigation, charge-sheet for offences under Sections 498A and 3/4 D. P. Act only was submitted. No charge-sheet for offence u/s 304B was submitted. On the basis of that charge-sheet, charges for offences under Sections 498A and 3/4 D. P. Act were framed against the Petitioner on 13.10.1998 by the A.C.J.M. u/s 240, Criminal Procedure Code Thereafter, the complainant on 17.11.1998 moved an application to frame charge for offence u/s 304B, Indian Penal Code also. That application has been allowed by the impugned order dated 9.2.2000 and it has been ordered that offence u/s 304B, Indian Penal Code is also prima facie disclosed against the Petitioner and, therefore, the case shall be committed to the Court of Session. This order passed by A.C.J.M. II, Bulandshahr, has been challenged in this petition.

I have heard Sri Sunil Kumar, learned Counsel for the Petitioner and Shri A. K. Singh, learned Counsel for opposite party No. 2, complainant of the case and the learned A.G.A.

The relevant provisions in the Code of Criminal Procedure regarding framing of charge by the Magistrate, addition, modification of the charges and regarding committal of the case at any stage of the trial are contained in Sections 216, 239, 240, 322 and 323, Criminal Procedure Code As already said, charge-sheet was submitted against the Petitioner for offences under Sections 498A and 3/4 D. P. Act and, therefore, the trial was proceeding before the Magistrate under Chapter XIX of the Criminal Procedure Code Section 239, Criminal Procedure Code provides for the discharge of the accused if the Magistrate after considering the report sent u/s 173, Criminal Procedure Code and hearing the parties is of the view that the charges are groundless. If the accused is not discharged, charge is framed by the Magistrate u/s 240, Criminal Procedure Code, and in this case, charges under that provision had been framed on 13.10.1998.

Section 216, Criminal Procedure Code provides that the Court may alter or add any charge at any time before judgment is pronounced. Section 322, Criminal Procedure Code, provides for the contingency where during trial it appears to the Magistrate that he cannot dispose of the case. Section 323 of the Criminal Procedure Code is material for the present matter which is as follows:

Section 323. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

Reading Sections 216 and 323 together, it appears that Magistrate is empowered to alter or add any charge at any stage of the case or may commit the case to the Court of Session before the judgment is pronounced. However, it does not mean that the charge can be altered or added or the case can be committed without any additional evidence or without any additional circumstances. Once the charge is framed, in my opinion, there must be some additional evidence or additional circumstance to alter or add the charge or to order that the case may be committed to the Court of Session. The additional circumstance, for example, may be that there may be clerical mistake, accidental omission or mistake apparent on the face of the record in framing of the charge. If it is so, the charge can be altered or added u/s 216, Criminal Procedure Code, and the case may also be committed u/s 323, Criminal Procedure Code

However, where the charges have been framed after considering all the documents and material mentioned in Sections 239 and 240, Criminal Procedure Code, the question is whether an additional charge can be framed on the basis of the said material except in case of circumstance mentioned above. In this case, the charges framed on 13.10.1998 show that it was framed after considering the entire material as required by Sections 239 and 240, Criminal Procedure Code

In my opinion, therefore, on the application of the complainant, the Magistrate has erred in re-considering the same material and ordering for addition of charge u/s 304B, Indian Penal Code against the Petitioner. No doubt, the charge u/s 304B, Indian Penal Code can be framed against the Petitioner, if any additional evidence is produced.

However, in the absence of any material as mentioned above, the order of the Magistrate that offence u/s 304B, Indian Penal Code, is also made out cannot be sustained.

Accordingly, the petition is allowed and the order of the Magistrate dated 9.2.2000 is quashed and it is ordered that the learned Magistrate may proceed with the trial of the case for the offences for which the charge was framed by him on 13.10.1998. However, it is clarified that if some additional evidence showing the commission of offence u/s 304B, Indian Penal Code is produced before the Magistrate, he may order committal of the case u/s 323, Criminal Procedure Code notwithstanding any observation made above.