IMPORTANT POINT:
On perusal of record and hearing the parties at the stage of discharge under Section227 Cr.P.C. if the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet.

JUDGMENT

Sudhansu Jyoti Mukhopadhaya, J.—Leave granted.

2. This appeal is directed against the judgment and order dated 11th December, 2007 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.26878 of 2007. By the impugned judgment, the High Court dismissed the application filed by the appellant-accused under Section 482 Cr.P.C for quashing the order dated 1st September, 2007 passed by the Additional Sessions Judge/F.T.C No.3, Basti in Sessions Trial No.207/07 in State v. Ram Vijay Yadav etc. By the said order, the Additional Sessions Judge framed the charge against the appellant-accused for the offence under Sections 302, 323, 504 and 506 IPC.

3. The factual matrix of the case is as under:

One Mahender Prasad Tiwari complainant lodged an FIR against the present appellant-Dinesh Tiwari, Sadhu Saran and Ram Vijay Yadav for the offence under Section 302, 323, 504 and 506 IPC in Police Station Mahuli, District Sant Kabir Nagar. It was registered as Crime No.84/2006. It was alleged that the appellant along with Sadhu Saran committed murder of Arvind Kumar Tiwari son of the complainant. Reasons for enmity and detail event of murder were mentioned in the FIR. Police started the investigation but subsequently, on the order of the Government the investigation was transferred to CBCID. CBCID submitted charge sheet against Sadhu Saran Yadav co-accused for the offence under Section 302, 323, 504 and 506 IPC. It was mentioned in the charge-sheet that investigation shall continue against rest of the accused persons. The CJM took cognizance of the offence vide order dated 8th May, 2006. The case was committed to the Court of Sessions and was registered ass. T. No. 149/2006 titled State v. Sadhu Saran Yadav. Thereafter, CBCID submitted the charge-sheet against Ram Vijay Yadav for the offence under Section 302, 323, 504 and 506 IPC and as against the appellant for the offence under Sections 323, 504 and 506 IPC. No charge-sheet was submitted against the appellant for the offence under Section 302 IPC. The cognizance was taken by CJM on charge sheet No.5A of 2006 on 23rd January, 2007. Bail was granted to the appellant for the offence under Section 323, 504 and 506 IPC. The case was committed to the Court of Sessions by the CJM after taking cognizance and the Sessions Court framed charge against the appellant for the offence under Section 302 IPC, apart from Section 323, 504 and 506 IPC.

4. The aforesaid order was challenged by the appellant by filing criminal miscellaneous application under Section482 Cr.P.C. for quashing the order framing the charge under Section 302 IPC. The High Court by impugned judgment and order dated 11th December, 2007 dismissed the same.

5. Counsel for the appellant has made the following submissions:

(a) Appellant-accused was not given an opportunity of being heard before framing of the charge under Section302 IPC.

(b) Neither any charge sheet was submitted by the investigating agency against the appellant for the offence under Section302 IPC nor any cognizance was taken by the CJM against him for the said offence. But Sessions Judge after committal framed the charge under Section 302 IPC which was not permissible.

6. Per contra, according to learned counsel for the respondents, there is ample material on record to show that the appellant along with Sadhu Saran committed murder of Arvind Kumar Tiwari son of the complainant and hence the Trial Court rightly framed the charge under Section 302 IPC.

7. Chapter XVIII of Cr.P.C. deals with “Trial before a Court of Session”. As per Section 226, when the accused person is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor is required to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove his guilt of the accused.

8. Section 227 deals with Discharge and it reads as follows:

“227. Discharge.-If, upon consideration of the