A Magistrate has the power under Section 216 of the CrPC to alter or add to any charge at any time before judgment is pronounced, including correcting errors in framing the charge or non-framing of a charge.

1. Being aggrieved by the order dated 2.9.1998 passed by the learned Addl. Chief Judicial Magistrate, Bagaha, the petitioner has moved this Court in this quashing application.

2. The facts of the case are that on First Information Report being filed a case under Sections 341, 323 read with Section 34 of the Indian Penal Code was initially registered. The Court received First Information Report on 16.6.1992 and the Investigating Officer of the case made a prayer for inserting Sections 307 and 325 of the Indian Penal Code in the case and the said prayer was allowed. After investigation the Investigation Officer found, prima facie, a case under Sections 341 and 307/34 of the Penal Code against the accused-persons and, as such, in Column 7 of the charge-sheet inserted those sections. However, in second paragraph of the charge-sheet instead of aforesaid five sections of the Penal Code only three Sections, namely 341, 323 and 34 were noted. Thus, cognizance was taken only under Sections 341, 323 and 34 of the Penal Cod on 18.12.1992 and the case was transferred to the Court of the Judicial Magistrate for trial.

3. Later on the case was transferred to the Judicial Magistrate, 1st Class where substance of accusation was explained on 6.9.1997 and prosecution witnesses 1, 2 and 3 were examined and cross-examined. The witnesses were discharged and the case of the prosecution was closed. On 28.8.1998 the statement of the accused-persons was recorded under Section 313 of the Code of Criminal Procedure.

4. However, on 29.8.1998 a petition was filed under Section 410 of the Code of Criminal Procedure for withdrawal of the case from the Judicial Magistrate, 1st Class and to pass appropriate order as the charge-sheet and the case-diary have been submitted by the police under Sections 341, 323, 325, 307 and 34 of the Penal Code. On this petition being filed the learned Court below perused the charge-sheet and the case-diary and found that the case was triable by the Court of Sessions because offence under Section 307 along with other Sections of the Penal Code were mentioned in the charge-sheet. Thus, he modified his order dated 18.8.1992 and further took cognizance under the aforesaid sections, namely, Sections 341, 323, 325, 307 and 34 of the Penal Code. He was of the view that the earlier procedure adopted by the Magistrate was without jurisdiction as the case was exclusively triable by the Court of Sessions.

5. Learned counsel for the petitioner submits that the Magistrate was not empowered to pass such order as it amounts to review its earlier order taking cognizance dated 18.8.1992. Secondly, the Magistrate could not have re-called or review its own order and this was not the stage when the Magistrate should go to the stage of investigation. In this connection, he has referred to the decision in the case of Ajit Kumar Mishra V/s. State of Bihar and others, 1998 (3) BLJ 607. On this learned counsel for the Opposite Party No. 2 contends that in view of Section 216 of the Code of Criminal Procedure, charge can be amended or altered at any stage till the judgment is pronounced. According to him, even the Appellate Court is empowered to alter or amend the charge if the records so reveal.

6. Section 216(1) of the Code of Criminal Procedure contemplates that any Court may alter or add to any charge at any time before judgment is pronounced. Similarly, sub-section (2) of Section 216 mandates that every such alteration or addition shall be read and explained to the accused. Combined reading of these two sub-sections will indicate that they are comprehensive including not only correction of an error in framing the charge but also non-framing of a charge. Both sub-sections apply to all Courts and have reference to cases where after disclosure of facts in evidence or the plea of the accused, or by reason of other circumstances, that is, aggravation of offence, it becomes necessary to alter or add a charge. It is true that the power to alter t