VISHNU CHANDRA GUPTA,J. - (1.) THIS Criminal Revision is directed against orders of trial court dated 18.9.2014 and 20.10.2014 whereby the Revisionists/accused facing trial in S.T. No.1572 of 2000 were charged in the alternative under Section 302 IPC in addition to charges under Sections 498A/304B IPC and Section 3/4 Dowry Prohibition Act already framed and thereafter rejection of application under section 217 CrPC moved by them for directing the prosecution to produce all the 17 witnesses already examined to substantiate the additional/alternative charge under section 302 IPC respectively.
(2.) THE brief fact for deciding this revision in nut cell are that in the trial, the prosecution had examined as many as seventeen witnesses. When the trial fixed for delivery of judgement, the trial court after observing it that alternative charge under Section 302 IPC has not been framed by his predecessor in this case of 304B IPC therefore, alternative charge under Section 302 IPC is required to be framed in the interest of justice and after framing alternative charge in addition fix the case for prosecution evidence on 23.9.2014. The prosecution did not adduce any addition evidence and case was proceeded further. The revisionists than move an application under Section 217, CrPC with a prayer to direct the prosecution to produce 1 to 17 witnesses already examined to substantiate the additional/alternative charge under Section 302 IPC. The trial court after observing that the prosecution did not avail the opportunity granted by the court and did not adduce any evidence thus, the evidence of prosecution was closed and case was listed for recording statement under section 313 CrPC., rejected the application of the revisionists.
(3.) HEARD the learned Counsel for the revisionists and learned AGA for the State and perused the record of the case It appears that after taking into consideration the directions issued by a two -Judge Bench of Hon'ble Supreme Court passed in Rajibir v. State of Haryana, 2011 AIR(SC) 568 by which the Hon'ble Supreme Court directed all trial courts in India to add Section 302 in every case alleging commission of an offence punishable under Section 304 -B IPC, the additional alternative charge has been framed against the revisionists. A plain reading of Section 216, Cr.P.C would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgement is pronounced. Sub -sections (2) to (5) of Section 216, Cr.P.C. deal with the procedure to be followed once the court decides to alter or add any charge. Section 217, Cr.P.C. deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgement. The circumstances, in which such addition or alteration may be made, are not, however, stipulated in Section 216, Cr.P.C. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.;