Raj Mani Chauhan, J. - (1.) HEARD learned Counsel for the Petitioners and learned A.G.A. for and State as well as perused the documents available on record.
(2.) THIS petition under Section 482 of Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the Petitioners against the order dated 12.08.2008, passed by the learned Additional Sessions Judge/F.T.C. Court No. 7, Sitapur in Sessions Trial No. 445 of 2006 (State v. Pappu alias Sunil and Ors.), Crime No. 121 of 2006, under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station Maholi, District Sitapur, whereby learned Additional Sessions Judge at the time of writing judgment found that on the basis of evidence adduced by the prosecution an alternative charge under Section 302 I.P.C. was required to be framed against the accused. The submission of learned Counsel for the Petitioners is that on the written report of complainant Shree Ram Kishun, police of Police Station Maholi registered a case under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act against the accused for investigation. The Investigating Officer after investigation of the case has submitted charge sheet against the accused. Learned Chief Judicial Magistrate on the basis of charge sheet submitted by the Investigating Officer committed the case to the court of Sessions for trial which gave rise to Sessions Trial No. 445 of 2006. The learned Sessions Judge had concluded the trial but at the time of writing judgment found that on the basis of evidence adduced by the prosecution an alternative charge under Section 302 I.P.C. was required to be framed. Learned Counsel for the Petitioners submits that the prosecution has led the evidence against the accused in support of charges which were framed against the accused. Accused could not be charged on alternative Section 302 I.P.C. which requires different standard of proof. The impugned order passed by the learned Additional Sessions Judge for framing alternative charge is illegal and liable to be quashed.
(3.) LEARNED A.G.A. opposed the petition and supported the order passed by the learned Additional Sessions Judge and argued that the learned Sessions Judge was fully competent under Section 216 of the Code to frame an alternative charge on the basis of evidence adduced by the prosecution. The court has accorded its satisfaction for framing of alternative charge. The accused will get opportunity for further cross examination of the prosecution witnesses after framing of alternative charge, therefore, accused are not prejudiced by the impugned order. The impugned order does not suffer from any illegality which does not call for any interference.;