IMPORTANT POINT
The court established that it can alter charges under Section 216 CrPC based on evidence, ensuring no prejudice to the accused, even after the trial has commenced.

JUDGMENT :

Shampa Dutt (Paul), J.:

1. The present revision has been preferred against an order dated May 11, 2022, passed by the Learned Judicial Magistrate, 1st Court, Chanchal, Malda, in connection with G.R. Case No. 1986 of 2018, arising out of Harishchandrapur Police Station Case No. 773 of 2018, October 26, 2018, under Sections 447/323/325/354/506/34 of the Indian Penal Code, 1860, whereby the Learned Judicial Magistrate, 1st Court, Chanchal, Malda has been pleased to allow the prayer of the De-facto complainant for addition of Section 326 of the Indian Penal Code.

2. The present case has been initiated on the basis of information lodged with the Harishchandrapur Police Station, by one Anjumwara of Mahendrapur, Malda. The said information was registered as Harishchandrapur Police Station case no. 773 of 2018, dated 26.10.2018, for investigation into alleged commission of offences punishable under Sections 447/341/325/326/308/354/379/506/34 of the Indian Penal Code, 1860.

3. In spite of due service, there is no representation on behalf of the opposite party no. 2.

4. The allegations brought by way of the First Information Report are inter alia to the effect that:-

“On 26.10.2018 at about 12.30 p.m. in the afternoon accused persons came to the informant’s land to grab it with deadly weapons. Thereafter informant and others family members went to the spot and tried to resist them. At that time accused persons assaulted the informant and her family members with such deadly weapons. Due to such informant’s brother-in-law had sustained bleeding injury. Then the accused persons also snatched the informant’s gold chain. After that they fled from the spot and they also threatened the informant and her family members with dire consequences.”

5. The petitioners state that after completion of the Investigation, the Investigating Agency filed Charge Sheet No. 43 of 2019 dated 26.10.2019 under Sections 447/323/325/354/506/34 of the Indian Penal Code.

6. The petitioners state that on 22.04.2021, the de-facto complainant filed an application under Section 173(8) of the Code of Criminal Procedure for further investigation. On 05.08.2021 Learned Additional Chief Judicial Magistrate, Chanchal, Malda on hearing both sides and was pleased to the reject the said application.

7. On 11.05.2022 date was fixed for passing order in respect of consideration of Charge. On that day Learned Magistrate heard both sides and was pleased to direct that the prayer of de-facto complainant be allowed to the extent of addition of Section 326 of the Indian Penal Code to the said charge.

8. The petitioners/accuseds case is that as per Section 326 of the Indian Penal Code, accused must have used dangerous weapons or means for grievous hurt. But as per the injury report, one bamboo stick was used by the petitioners and bamboo sticks cannot be said to be a dangerous weapon as stated by the petitioners.

9. The petitioners further state that, Learned Magistrate has failed to comply with the provision of Section 301(2) of the Code of Criminal Procedure, where it is clearly stated that the private pleader can assist the Public Prosecutor or Assistant Public Prosecutor.

10. The relevant part of the order under revision is as follows:-

“GR 1986/2018

J.O CODE – WB1424

Order dated 11.05.2022

………….. It has been next alleged by the de-facto complainant that the I.O. has investigated this case without interrogating the de-facto complainant and without recording any statement of the witnesses u/s 161 of Cr.P.C. whose names have been enlisted in the charge sheet by the concerned I.O. and I.O. has not collected the injury report of the injured person namely Salam and such injury report clearly specifies that such injured person sustained injury on his head and in his eyes and it is clearly mentioned in the injury report that the fractured was seen in his frontal bone of sculf due to the sharp cut injury which attracts Section 326/307 of IPC but the concerned I.O. has submitted the charge sheet