The main legal point established in the judgment is that the power to alter or add to any charge under Section 216 of the Cr. P. C. includes the power to withdraw or remove an offense from the charge, especially when the charge contains more than one offense. Additionally, the judgment emphasizes the importance of complying with the mandatory provisions of the Cr. P. C. regarding hearing the accused before charge framing.

JUDGMENT

S. B. Shukre, J. - Rule. Rule made returnable forthwith. Heard finally by consent.

2. This petition questions the legality and correctness of the orders passed by the Courts below rejecting the petitioners'' application filed under Section 216 of the Code of Criminal Procedure (for short, ''Cr. P. C. '') for alteration of the charge.

3. The first order of rejection came from the trial Court, which is the Court of Judicial Magistrate First Class, Court No. 8, Amravati, on 21/03/2016. The second order of rejection was in Criminal Revision No. 42/2016 passed on 22/11/2017 by the learned Sessions Judge, Amravati.

4. There have been three grounds taken for pressing the prayer for alteration of the charge. The first ground is that the charge, as framed, is defective and the defect is the result of noncompliance with the mandatory provision of law under Section 239 of Cr. P. C. requiring the Court framing the charge to give an opportunity of hearing to the accused before the charge is framed.

The second ground is that at least an offence of extortion punishable under Section 386 of Indian Penal Code is not made out in any manner so as to enable the Court to try the accused on such charge. The third ground relates to making a hotchpotch of several distinct offences committed by different accused persons at different places, different points of time thereby violating the mandate of Sections 212, 218, 219, 220 and 223 of Cr. P. C.

5. Shri P. W. Mirza, learned Counsel for the petitioners to justify the grounds of challenge, has taken me through the relevant paragraphs of the impugned orders. Shri C. A. Lokhande, learned Additional Public Prosecutor for the State opposing the argument of learned Counsel for the petitioners submits that even if some errors are there in framing of the charge, no prejudice is going to be caused to the petitioners, as ultimately they would be getting adequate opportunity to prove their defence and show as to how the charge framed against them is without any substance.

6. To deal with first objection, one has to consider the provisions of Sections 239 and 240 of Cr. P. C. , this being a warrant trial case. These provisions require the Magistrate to give the prosecution and the accused an opportunity of being heard before the charge is framed. Similar provisions are to be found under Sections 227 and 228 of Cr. P. C. , which apply to trial of session case under Chapter XVIII of Cr. P. C. They oblige the Sessions Court to hear the submissions of the accused and the prosecution before the charge is framed. In interpreting these sections, the learned single judges of this Court, in at least two cases, have taken a view that the procedure prescribed in these sections is not an empty formality and a Sessions Judge is bound to comply with these provisions of law in the letter and spirit. A useful reference in this regard may be made to the cases of Ambadas Kashirao Kharad and others vs. State of Maharashtra , 2007 1 MhLJ(Cri) 517, and Shri Hitesh Kishorechand Raithatha & Ors. vs. State of Maharashtra & Anr. , 2008 AllMR(Cri) 3445.

7. The order passed by the learned Magistrate dated 21/03/2016 discloses that the learned Magistrate "prima facie presumed" (paragraph 11 of the oder and page 84 of the paperbook of the writ petition) that accused persons were represented by a lawyer and, therefore, his learned predecessor must have framed the charge after hearing of the accused persons and their lawyers.

I do not understand the logic behind such an observation. There cannot be any "prima facie presumption" about the predecessor of the learned Magistrate having heard the accused persons before framing of the charge only because on the date on which the charge was framed, the accused persons represented through lawyers were present in the Court. Personal presence of accused is one thing and hearing them is another. To record a finding that the accused were heard before the charge was framed, one needs to satisfy ones