A.A.DAVE - (1.)This revision application has been preferred by the State against the order dated 2nd April 1973 Ex. 2 passed by the learned Sessions Judge Bulsar at Navsari in sessions case No. 42 of 1972 whereby original charge framed against accused Nos. 1 and 2 under secs. 395 397 and 307 I.P.C. and under secs. 326. I.P.C. against accused No. 1 and under sec. 323 I.P.C. against accused Nos. 2 3 4 and 5. No charge was framed against accused Nos. 6 7 and 8.
(2.)Mr. A. H. Thakar learned Assistant Government Pleader who appeared on behalf of the State urged that the interpretation put by the learned Sessions Judge on the decision of this Court in the case of State of Gujarat v. Mahmad Kasam and another A.I.R. 1967 Gujarat 169 is absolutely erroneous. He urged that no doubt the Sessions Judge has power to add or alter to the charge framed by a Magistrate while committing the accused to the court of sessions. But he has no power whatsoever to alter the charge in such a manner so as to quash the charge framed against the accused. In the instant case he urged that even though all the accused were charged under sec. 395 I.P.C. the learned Sessions Judge did not frame this charge against them at all and merely charged accused No. 1 under sec. 326 I.P.C; and accused Nos. 2 3 4 and 5 under sec. 323 I.P.C. and did not frame any charge against the rest of the accused which is clearly erroneous.
(3.)I entirely agree with the submissions made by the learned Assistant Government Pleader. In the case of State of Gujarat v. Mahmad Kasam and another referred to earlier the Division Bench of this High Court made the following observations :-
"It is undoubtedly true that in a sense alteration of the charge from one offence to another would involve in the process extinction of the charge for the old offence and framing of a charge for the new offence but that power is expressly conferred on the Court of Sessions under sec. 226 if the conditions set out in the section are satisfied and we do not therefore see why we should refuse to concede such power to the Court of Session merely on the ground that the effect of recognising such power would be to empower the Court of Session to quash the charge. The Court of Session indubitably cannot quash the charge when the accused is committed to it for trial but it can certainly frame a new charge or add to or otherwise alter the charge as provided expressly in sec. 226."
with respect I am in entire agreement with the above observations. However it may be noted that these observations were made by the Division Bench in the light of the special facts of that case. In that case even though a charge sheet was submitted against the accused under sec. 302 I.P.C. read with sec. 34 I.P.C. the learned Magistrate had committed the accused to the Court of Sessions to stand their trial for offence under sec. 304-II I.P.C. On an application given by the Public Prosecutor the charge was amended by the Sessions Court and the accused were charged for the offences under sec. 302 read with sec. 34 I. P. C. Against that order a revision application was preferred to this court and the division bench made the above observations. It is true as observed by this court that the Sessions Judge has a power under sec. 226 of the Code to amend alter or add to the charge under which the accused is committed to the Court of Sessions. It may happen that the original charge may be extinguished when a new charge is framed by the Court of Sessions. But that would not mean that when the accused have been committed to the Court of Sessions for standing their trial for the offences under sec. 395 397 and 307 I.P.C. it would be open to the Sessions Court to ignore these charges altogether and frame a charge under sec. 326 I.P.C. against accused No. 1 only and under sec. 323 I.P.C. against accused Nos. 2 3 4 and 5 only and not frame any charge against rest of the accused. This order of the learned Sessions Judge amount to quashing of the order of commitment made by the learned Magistrate against the accused Nos. 6 7 and 8 which is not permissible tot he learned Sessions Judge at all. In fact framing of the charge under secs. 326 and 323 I.P.C. simpliciter against accused No. 1 and accused Nos. 2 to 5 respectively also amounts to quashing of the charge against them under secs. 395 and 397 which is also not permissible to the Sessions Court. In the case before this High Court even though the charge-sheet was submitted against the accused under sec. 302 I.P.C. the learned Magistrate thought it fit to commit them for an offence under sec. 304-II I.P.C. The learned Sessions Judge therefore from the papers charged them under sec. 302 I.P.C. read with sec. 34 I.P.C. In the context of these facts the High Court was of the view that it was within the power of the Sessions Judge to alter amend or add to the charge framed by the learned Magistrate. It does not mean and it could never be meant that it was open to the learned Sessions Judge to ignore the charge for higher offence and to frame a charge which would virtually amount to quashing of the order of commitment against the accused. If the learned Sessions Judge thought that there was no material whatsoever to frame a charge against the accused under secs. 395 and 397 I.P.C. he could have referred the matter to this court for quashing the order of commitment under these charges. It should be remembered that the charge under secs. 395 and 397 I.P.C. denote that there were more than 5 accused persons who were charged with having committed dacoity and while committing dacoity one of them was alleged to have used a deadly weapon. The manner in which the learned Sessions Judge has exercised his jurisdiction under sec. 226 of the Code would indicate that he has abused his powers. He has misread and misappreciated the decision of this court in the case of State of Gujarat v. Mahmad Kasam (supra). It seems with respect to the learned Sessions Judge that he has not tried to refer to the facts of the said case while applying the ratio of that case to the case before him. The Division Bench had placed reliance on the Bombay decision reported in 47 B.L.R. 995 wherein also when the accused were committed on a charge against accused No. 2 of murder under sec. 302 I.P.C. and against accused Nos. 1 and 4 under secs. 323 and 109 I.P.C. it was held that it was competent to the Clerk of the Crown under sec. 226 of the Code to alter the second charge into one under secs. 302 and 109 I.P.C. for aiding and abetting accused No. 2 to commit murder. The power to add to or alter the charge conferred by sec. 226 of the Code cannot be used in doing away with the main charge involving higher offence and framing a new charge which would clearly amount to quashing of the commitment under the higher charge. In my opinion the charge framed by the learned Sessions Judge is absolutely erroneous and is not prima facie warranted from the papers on record.
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