Shamshad and Others vs State of U.P. and Another

S.C. Chaurasia, J.—List revised.

Notice has been served on the opposite party No. 2 as per office report dated 21.12.2011, but, none has appeared on his behalf.

Supplementary affidavit filed on behalf of revisionists is taken on record.

Heard Sri Hari Om Khare, learned counsel for the revisionists, learned A.G.A. and perused the record.

This revision has been preferred against the impugned order dated 16.9.2011, passed by the learned Additional Sessions Judge, Court No.8, Badaun, in Sessions Trial No. 891 of 2007, State Versus Shamsad & others, whereby, he rejected the accused-revisionists'' application for modification of the charges levelled against them.

Learned counsel for the revisionists has submitted that the accused-revisionists have been charged wrongly u/s 302 I.P.C., although, on the basis of allegations made against the accused-revisionists, the charge u/s 304 I.P.C. ought to have been framed against them. He has further submitted that the trial court is competent to modify the charges at any stage, but, the learned trial court has rejected the accused-revisionists'' application for modification of the charges illegally, without applying its judicial mind and, hence, the impugned order deserves to be quashed.

Learned A.G.A. has drawn my attention towards Section 222 of the Code of Criminal Procedure and has submitted that even if, charge has been framed u/s 302 I.P.C. and if from the evidence produced by the prosecution, the lessor charge u/s 304 I.P.C. is made out, the court is competent to pass appropriate order accordingly. He has further submitted that the order passed by the trial court is perfectly valid and it calls for no interference.

From perusal of the record, it transpires that after framing of charges against accused-revisionists under Sections 147, 148, 149, 307, 302, 332, 333, 336, 353 I.P.C., the prosecution evidence has been concluded on 15.1.2011. Thereafter, statements of accused-revisionists u/s 313 Cr.P.C. have been recorded and the case is at the stage of arguments. Thereafter, an application on behalf of the accused-revisionists has been moved for modification in the said charges and framing charges under Sections 336, 308, 304 I.P.C. against the accused-revisionists.

After considering the record, the learned trial court has rejected the accused-revisionists'' application, vide order dated 16.9.2011. Feeling aggrieved by the said order, the instant revision has been preferred.

In view of Section 216 Cr.P.C., it is clear that the court may alter or add to any charge at any time before judgment is pronounced. Under these circumstances, the power of the court to modify the charges at any stage before pronouncement of judgment cannot be disputed. In the instant case, the case is at the stage of argument. The accused-revisionists are entitled to raise the plea during arguments that from the evidence available on record, no offence u/s 302 I.P.C. is made out and at the most, offence u/s 304 I.P.C. is made out against the accused. If such a plea is raised on behalf of the accused during arguments, the learned trial court would definitely consider the said plea in accordance with law and shall record a clear finding thereon. The learned trial court has observed in its order that the application for modification of charges has been moved in order to delay the disposal of the case.

After going through the record and the impugned order, I am of the view that the learned trial court has not committed any illegality or impropriety in exercise of its jurisdiction in rejecting the accused-revisionists'' application for modification of the charges and, hence, no interference is called for by this Court in exercise of its revisional powers.

This revision is devoid of merits and it is dismissed accordingly.