- (1.) B. K. Rathi, J. The petitioner is an accused in Case No. 203 of 1999, State v. Pradeep Kumar & others, pending in the Court of ACJM II, Bulandshahr. The F. I. R. of the incident was lodged by Vinay Agrawal at Crime No. 10 of 1997 at Police Station Gulaothi District Bulandshahr for offences under Sections 304-B, 201, 498-A IPC and 3/4 D. P. Act. The petitioner is the father-in-law of the victim. After investigation charge-sheet for offences under Section 498-A and 3/4 D. P. Act only was submitted. No charge-sheet for offence under Section 304-B was submitted. On the basis of that charge-sheet charges for offences under Section 498- A and 3/4 D. P. Act were framed against the petitioner on 13-10-1998 by the ACJM under Section 240 Cr. P. C. Thereafter, the complainant on 17-11-1998 moved an application to frame charge for offence under Section 304-B I. P. C. also. That application has been allowed by the impugned order dated 9-2-2000 and it has been ordered that offence under Section 304-B I. P. C. is also prima-facie disclosed against the petitioner and therefore the case shall be committed to the Court of Sessions. This order passed by ACJM-II, Bulandshahr has been challenged in this petition.
(2.) I have heard Sri Sunil Kumar, learned counsel for the petitioner and Shri A. K. Singh, learned counsel for the 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 Cr. P. C. As already said charge-sheet was submitted against the petitioner for offences under Section 498-A and 3/4 D. P. Act and therefore, the trial was proceeding before the Magistrate under Chapter XIX of the Cr. P. C. Section 239 Cr. P. C. provides for the discharge of the accused if the Magistrate after considering the report sent under Section 173 Cr. P. C. and hearing the parties is of the view that the charges are ground less. If the accused is not discharged charge is framed by the Magistrate under Section 240 Cr. P. C. , and in this case charges under that provision had been framed on 13-10-1998. Section 216 Cr. P. C. provides that the Court may alter or add any chage at any time before judgment is pronounced. Section 322 Cr. P. C. provide for the contingency where during trial it appears to the Magistrate that he cannot dispose of the case. Section 323 of the Cr. P. C. 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. "
(3.) 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 Sessions 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 circumstance. 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 Sessions. 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 under Section 216 Cr. P. C. and the case may also be committed under Section 323 Cr. P. C. However, where the charges have been framed after considering all the documents and material mentioned in Sections 239 and 240 Cr. P. C. the question is whether an additional charge can be framed on the basis of the said material except in cases 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 Cr. P. C.;