Bombay High Court
Arun S/O. Natthuji Zatale And ... vs The State Of Mah. Thr. Pso, Ps ... on 19 June, 2023
Bench: G. A. Sanap
1 3.apl.743.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 743 OF 2023
Arun S/o. Natthuji Zatale and Ors.
.VS.
The State of Maharashtra and Anr.
_______________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr Gajendra Sadar, Advocate for the applicants
Ms M. H. Deshmukh, APP for non-applicant No.1/State
CORAM : G.A. SANAP, J.
DATE : JUNE 19, 2023.
Heard learned Advocate for the applicants and
learned APP for non applicant No.1/State
2. In this criminal application, the applicants/accused
have questioned the correctness of the order dated
14.02.2023 passed by the learned Judicial Magistrate First
Class, Court No.1, Chandur Bazar, District Amravati
whereby the learned Magistrate was pleased to allow the
application made by the informant for alternation of charge
framed under Section 324 to Section 326 of the Indian
Penal Code.
3. The application under Section 216 of the Code of
2 3.apl.743.2023
Criminal Procedure was made by the complainant. It was
not made by the prosecutor. Learned Magistrate has
recorded in his order that x-ray report of the injuries
sustained by the informant indicates that he had sustained
fracture. The x-ray reports are on record at Exh. 46 & 47.
It is the case of the prosecution that the injuries were caused
by stick and iron pipe. Learned Magistrate initially framed
the charge under Section 324 of the Indian Penal Code.
The prosecutor, for the reasons best known to him, did not
either apply for alternation of charge or made submissions
before the learned Magistrate to that effect. The informant,
who had sustained the fracture, applied before the learned
Magistrate under Section 216 of the Code of Criminal
Procedure. Learned Magistrate has observed in the order
that the informant had sustained the fracture. It has also
been observed in the order that these injuries were caused by
dangerous weapon or means.
4. The main objection of the accused to this order
passed by the learned Magistrate is that the application made
for alternation of the charge by the informant was not
maintainable under the law. In support of this submission
reliance has been placed on the decision in the case of P.
Kartikalakshmi .v/s. Sri Ganesh and Another, reported in,
3 3.apl.743.2023
(2017) 3 SCC 347 , wherein it is held that the powers under
Section 216 are vested in the Court exclusively. There is no
right in any party, neither de facto complainant nor accused
nor prosecution, to seek such addition or alternation by
filing any application as a matter of right.
5. In my view, in this case undisputedly the application
was made by the informant. The informant or the
prosecutor could have brought this fact to the notice of the
Court and requested the Court to consider the alternation of
charge. Learned Magistrate then was required to apply his
mind to the material placed on record and proceed further
for alternation of charge. It is to be noted that in my view
considering the law laid down by the Apex Court in P.
Kartikalakshmi (supra) the order passed by the Magistrate
altering the charge cannot be sustained. Therefore, the order
has to be set aside.
6. It is to be noted that as per Section 216 of the Code
of Criminal Procedure the Court can alter or add the charge
at any time before the judgment is pronounced. In this case,
the evidence of the prosecution is going on. The duty has
been cast on the Court to frame the proper charge consistent
with the case of the prosecution and the material complied
4 3.apl.743.2023
in the charge sheet. In this case, the x-ray reports are on
record. The x-ray report and the x-ray plates indicate that
the informant had sustained fracture. The fracture falls
within the grievous hurt as understood by Section 320 of the
Indian Penal Code. It is undisputed that the weapons used
in the crime are stick and iron pipe. Learned Magistrate has
recorded in his order that these injuries were caused by
dangerous weapons or means. In the fact situation, even if
the order passed by the learned Magistrate is set aside, in the
backdrop of the law laid down by the Hon'ble Apex Court, I
am of the opinion that in order to avoid miscarriage of
justice, it would be the duty of the learned Magistrate to alter
the charge invoking his power under Section 216 of the
Code of Criminal Procedure and by following procedure and
mechanism provided under Section 216 of the Code of
Criminal Procedure strictly. Accordingly, the application is
allowed.
7. The impugned order dated 14.02.2023 passed by
the learned Judicial Magistrate First Class, Court No.1,
Chandur Bazar, is quashed and set aside.
8. Learned Magistrate is directed to alter or add the
charge framed under Section324 of the Indian Penal Code
5 3.apl.743.2023
and frame the charge under Section 326 of the Indian Penal
Code.
9. The learned Magistrate shall follow the procedure
in entirety as provided under Section 216 of the Code of
Criminal Procedure.
10. Learned Magistrate shall alter the charge within 15
days from today. Considering the fact that the charge sheet
was filed in the year 2011, the learned Magistrate shall
decide the case within a period of three months from today.
11. The criminal application stands disposed of.
(G. A. SANAP, J.)
Namrata
