Amitav Kumar Gupta, J. - (1.) This revision application has been preferred against the order dated 1.5.2014, passed by Additional Sessions Judge -VI, Hazaribagh, in ST. Case No. 621/2008, whereby the court below has altered the charge by adding 304 -B along with other Ss. under which charge was framed by order dated 2.4.2009 passed by learned Additional Sessions Judge -II, Hazaribagh. Learned counsel, for the petitioner, has submitted that it would be evident from Annexure -6, i.e., order dated 2.4.2009, that the Additional Sessions Judge -II, while rejecting the petition filed under Sec. 227 Cr.P.C. for discharge and on consideration of the material available on record was satisfied that there was material evidence on record to make out a prima facie case under Ss. 328, 302, 120 -B, 34 IPC against the accused persons, and accordingly the accused persons/petitioners were directed to appear for framing of charge. That on 1.5.2014 petitioners were present before the Court of Additional Sessions Judge -VI, Hazaribagh for framing the charge. Surprisingly, the Additional Sessions Judge -VI, Hazaribagh, altered the charge without giving any opportunity of hearing to the petitioners and observed that there are sufficient grounds for presuming that the petitioners -accused have committed offence under Ss. 302/34 in -alternate 304 -B in -alternate 306 of the IPC. It is argued that no doubt the court is empowered to alter or add the charge in terms of Sec. 216 Cr.P.C., however, the material available on record should have been considered, which the trial court has not considered and passed the order on presumption that the accused persons have committed offence punishable under Sec. 302/34 in -alternate 304 -B in -alternate 306 of the IPC. It is urged that such order is palpably against the provisions of law and is fit to be set aside.
(2.) Learned APP has contended that the trial court has considered the materials available on record and found prima facie case under Sec. 302 in the alternate Sec. 304 -B and in the alternate 306 IPC read with 34 IPC to proceed against the accused persons. That the impugned order has been passed in exercise of the power under Sec. 216 Cr.P.C. and does not suffer from any infirmity or illegality. Heard. It is true that Sec. 216 Cr.P.C. empowers the court to alter or add the charge at any time, before the judgment is pronounced. From the impugned order it is evident that neither witnesses were examined nor any fresh evidence was brought on record to show as to how the learned court below was satisfied that material evidence was sufficient to alter the charge or what were the grounds or materials available on record due to which it did not agree with the finding of Additional Sessions Judge -II, that prima facie case was made out for putting the petitioners on trial for the charges under Ss. 328, 302, 120 -B, 34 IPC. The impugned order would have been sustainable, if the material evidence had been sifted or weighed at least for the limited purpose for recording of satisfaction by the Additional Sessions Judge -VI that there was evidence on record to reasonably connect the accused -petitioners for the offence under Ss. 304 -B and 306. From the impugned order it is abundantly clear that no reasons have been assigned save and except the observation of learned Additional Sessions Judge -VI that "even if the charges were framed by a predecessor judge, the successor judge is very much empowered under Sec. 216 Cr.P.C. to alter or add charges at any stage" consequent thereto in a mechanical manner the order has been passed observing that "sufficient ground for presuming that the accused persons have committed offence punishable under Sec. 302/34 in -alternate 304 -B in -alternate 306 of the IPC". In the given facts and circumstances the impugned order is not sustainable, accordingly, the order dated 1.5.2014, passed by Additional Sessions Judge -VI, Hazaribagh, in ST. Case No. 621/2008 is hereby set aside and the matter is remitted to the court below which shall pass a speaking and reasoned order recording its satisfaction for framing charge in the alternate under Ss. 304 -B & 306 IPC on the basis of the material available on record, after giving an opportunity of hearing to the parties. With the said observation and direction this revision application is hereby allowed.;