D.S. Tewatia, J. - (1.) THIS revision petition is directed against the order dated November 20, 1979, of the learned Sessions Judge, Ludhiana, whereby he dismissed the application under Section 216, of the Code of Criminal Procedure requiring the court to frame a charge under Section 302 against Devinder Singh (absconder) accused and also under Section 302/34 of the Indian Penal Code against Mohinder Singh and Devinder Singh, filed by Smt. Saraswati widow of Kanwar Radar Singh, who had been murdered in the occurrence that took place on April 17, 1979. regarding which F.I.R. No 34 had been lodged by Mr. Ujjal Singh Sahni, Advocate, in police station Samrala on the same date i.e. April 17, 1979 According to the learned trial court, two questions had to be satisfactorily answered in favour of the applicant before the prayer for adding of the charges was acceded to. These questions were - (i) Whether Sarvshri J. R, Verma and N.C. Tandon, Advocates, who are counsel for Smt. Saraswati, have the locus standi to file this application ? (ii) Whether a charge under Ss. 302/34, I. P. C. should be added ?
(2.) THE learned trial court, while dealing with the first question held that the application in question had been put in on behalf of Smt. Saraswati, who is only a prosecution witness and not the complainant. According to the learned trial court, the first informant who lodged the F.I.R was the complainant. It could not held, in view of a decision of this Court in Randhir Singh v. Kala Singh,, (1979) 81 P.L.R. 286 :, (1979) 6 Cr. L. T. 98 and that a private counsel appearing on behalf of the complainant was not competent to move an application, but proceeded to add that in the present ease, the counsel who moved the application, could not be considered to be a counsel for the complainant as Smt. Saraswati was merely a prosecution witness and not a complainant.
(3.) THE trial court, however, does not enlighten us as to who in its view was the complainant. Perhaps it thought that the first informant was the complainant . In my opinion, the trial court was not at ell right in not treating Smt. Saraswati as the complainant. After all, the person murdered was her husband. She is the aggrieved party and she is the true complainant. The person who lodges the First Information Report nay or may not be the complainant. In the present case, Mr. Sahni was merely a first informer and not a complainant. It is also not necessary that the Public Prosecutor should have lent his weight and support to the application moved by the counsel of Smt. Saraswati. The Lahore High Court, the predecessor of this Court, as far bach as 1929, held in Dasaundha Singh v, Lachhman Singh, : A.I.R. 1929 Lah 127 (1) that an application moved for framing a new charge or a modified charge need not necessarily be made by the Public Prosecutor or with his consent. While dealing with the second question, the learned Sessions Judge observed that the charge under Section 302 read with Section 34 of the Indian Penal Code could be framed only on the basis of the material available on the record when the charge was to be framed in the first Instance and that the exercise of power under Section 216 of the Code of Criminal Procedure, is subject to the said avir riding constraint. The learned Sessions Judge further observed that the counsel for the applicant wanted him to take into account the material brought on the record as a result of the prosecution evidence, after the Initial charge had been framed, which was In the following words: It is not disputed by the counsel for the Petitioner, that, the charge was correctly framed on the material as it existed on the record when the accused was produced In this Court. Their contention, however, is that during the trial of the ease, it has come on the record in the statement of Shri Ujjal Singh Sahni, Advocate, that Mohinder Singh accused, had taken away the assailant on his motor cycle, after the offence had been committed. It has, therefore, been urged that atleast against Mohinder Singh, a charge under S 302/34 IPC, should be added." The trial court was net right in observing that material was not available on the record, when could justify the framing of a murder charge against Dewinder Singh or an additional charge under Sections 302/34 of the Indian Penal Code, against Dewinder Singh and Mohinder Singh.;