JUDGMENT

M.L. Mehta, J. (Oral)

1. This revision petition is filed under Section 397/401 CrPC read with Section 482 CrPC against the order dated 5.1.2012 of ACMM, Tis Hazari Courts, passed in FIR No. 565/1998, P.S. Prasad Nagar. The petitioner was charge sheeted under Section 409/420/468/471/120B IPC. Vide order dated 27th April, 2011, the learned ACMM ordered for framing of charges and in the last paragraph 9 recorded as under:

"9. Accordingly, there is sufficient material to frame charge against all accused for the offence u/s 409 in alternative 420,468/471 IPC. Be posted for appearance of accused persons"

2. In pursuance of the said order, the charges were framed under aforesaid Sections on 13th July, 2011. The petitioner pleaded not guilty to the charges and the case was fixed for complainant's evidence on 8.9.2011. In the mean, an application had been filed by the learned Prosecutor on 01.07.2011 stating that though the summoning order dated 27.4.2011 had disclosed about the conspiracy and active participation of all accused persons but, inadvertently due to typographical mistake, Section 120B IPC remained to be mentioned at the end of the order. A prayer was made vide this application to add Section 120B IPC in the order dated 27.4.2011. Copy of this application was provided to all the accused persons and the matter was also posted for arguments on this application.

3. Vide the impugned order dated 5.1.2012, the learned ACMM allowed the application of the learned Prosecutor and after discussing the contentions of the counsel of both the parties, in the last paragraph recorded as under:

"7. Having considered the above, the application filed by Ld. Special PP stands allowed. The Order dated 27.04.11 stands modified to this extent by inserting Section 120-B IPC in para 9 thereof with further corollary change in the Order of charge framed on 13.07.11 by adding Section 120-B IPC in Charge".

4. It is this order of the ACMM, which is assailed in the present revision petition. The contention of the learned counsel for the petitioner is that once the charges have been framed based on the order of charge and there being no charge framed under Section 120B IPC, the learned ACMM had no power to review her own order and to make addition of Section 120B IPC in the charge. It was submitted that there was a clear bar of making any alteration or review as per Section 362 CrPC. The submission of the learned counsel was that the non-mentioning of Section 120B IPC in the order of charge as also in the charge framed cannot be said due to inadvertent omission or typographical mistake, but the learned ACMM had not chosen to frame charge under this Section and now, in the absence of there being any additional evidence against the petitioner, additional charge could not be framed under Section 120B IPC. Learned counsel placed reliance on the case of Union of India Vs. Prafulla Kumar Samal and Anr., AIR 1979 SC 366.

5. I have heard learned counsel for the petitioner and learned APP for the State and perused the record.

6. With regard to the submission of the learned counsel for the petitioner that the addition of Section 120B IPC would amount to alteration or review of the order by the ACMM and the same was barred under Section 362 CrPC, it may be noted that this submission is apparently misconceived. Section 362 CrPC creates bar in the alteration or review of judgment or final order disposing of a case finally. It was not applicable in the case of alteration or review of the charge. Though, undisputedly, there is no power of review of order of charge, but, Section 216 CrPC specifically empowers the Magistrate to alter or add to any charge at any time before judgment is pronounced. Though as per Section 216 CrPC, the Magistrate enjoys the power of altering or adding of any charge, if the case so requires, but, in the instant case, it could not be said to be either any addition or alteration of the charge or the review of the or