Court's authority to frame and alter charges depends on the presence of prima facie evidence, distinguishing between murder and dowry death charges under relevant legal provisions.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. M.B. Lal, learned counsel appearing for the petitioner and Mr. Bishwambhar Shastri, learned A.P.P. for the State.

2. Notice upon the O.P. No. 2 has already been effected, however he has chosen not to appear in the matter and earlier the matter was adjourned several times.

3. This revision petition has been preferred against the order dated 20.09.2019, passed by the learned Additional Sessions Judge-II- FTC, Bokaro, in S.T. No. 278 of 2019, arising out of Chandankiyari P.S. Case No. 15 of 2018 corresponding to G.R. No. 231 of 2018, whereby, the petition filed by the petitioner under Section 227 of the Cr.P.C. for discharge has been rejected by the learned court and the learned court has held that this is a fit case to frame charge under Sections 302 and 304-B of the Indian Penal Code.

4. Mr. M.B. Lal, learned counsel appearing for the petitioner submits that initially the UD case has been filed by the father of the deceased and thereafter the matter was closed. He submits that after 13 months of the occurrence, the brother of the deceased has filed the complaint case, which was sent by the learned court under Section 156 (3) of the Cr.P.C. to the police, pursuant to that the FIR was registered and after investigation, the chargesheet was submitted under Section 302 of the Indian Penal code. He further submits that thereafter the discharge petition has been filed under Section 227 of the Cr.P.C., which has been rejected by the learned court and the learned court has been pleased to hold that this is a fit case to frame charge under Sections 302 and 304-B of the Indian Penal Code. He submits that the petitioner is aggrieved with the action of the learned court so far as Section 304 -B of the Indian Penal Code is concerned. He further submits that the learned court is having the power to alter the charge, however, in the present case in a discharge petition that has been held in absence of any materials to conclude that -B of the Indian Penal Code is also made out. On these grounds, he submits that the impugned order may kindly be set aside.

5. On the other hand, Mr. Shastri, learned A.P.P. appearing for the State has opposed the prayer and submits that the learned court has rightly passed the said order considering the parameters of the discharge petition.

6. It is an admitted position that the learned court has been pleased to take cognizance under Section 302 of the Indian Penal Code by the order dated 29.07.2019. The petitioner herein has filed the discharge petition under Section 227 of the Cr.P.C. and the learned court while deciding the said petition, has held that it is a fit case to frame the charge under Sections 302 and 304-B of the Indian Penal Code.

7. When the discharge petition was filed before the learned court, the learned court was required to decide the same in accordance with law. There is no doubt that the learned court can alter or add any charge at any stage before the judgment when the materials have come in the evidence and found that the charge is defective. Reference may be made to the case of Jasvinder Saini & Ors. Versus State (Government of NCT of Delhi), reported in (2013) 7 SCC 256 wherein, the Hon’ble Supreme Court in paras-11, 12, 13 and 15 has held as follows:-

“11. A plain reading of the above would show that the Court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the Court decides to alter or add any charge. Section 217 of the Code deals with the recall o