The court has the power to alter or add charges at any time before the judgment is pronounced, and such alteration or addition should not cause prejudice to the accused in their defense. The accused should be allowed to have a fair trial, and the court must exercise its powers judiciously to ensure no prejudice is caused.

JUDGMENT

(Prayer: Criminal Revision Case is filed under Section 397 and 401 of Cr.P.C., to set aside the order, dated 24.02.2022 passed by the learned Judicial Magistrate No.II, Vellore in Crl.M.P.No.9152 of 2021.)

1. This Revision is filed challenging the order of the learned Judicial Magistrate No.II, Vellore, dated 24.02.2022 in Crl.M.P.No.9152 of 2021 in C.C.No.10 of 2016.

2. The gist of the allegations of the prosecution is that the property in Alandur village S.Nos.376/1B1 and 376/1C1, totally admeasuring to 3 Acres 76 Cents belongs to N.Syamasundara Naidu, the defacto complainant, he having purchased the same by a registered sale deed, dated 23.05.2012. Taking advantage of the fact that he was absent in the village and was living in Tirupathi, the first and second accused entered into a conspiracy and so as to grab the said property, forged a sale agreement in respect of the said property and on the strength of the sale agreement, filed O.S.No.130 of 2014 and also tried to trespass into the property and when the de-facto complainant came to know of the same, they also threatened to do away his life. On the above allegations, a case was registered in Crime No.42 of 2014 by the Inspector of Police, District Crime Branch (ALGSC), Vellore and a Final Report was filed proposing the accused guilty of certain offences. Thereafter, upon the case being taken on file as C.C.No.10 of 2016, on 18.02.2016, the learned Magistrate framed the charges under Section 120(B), 419, 420, 423, 447, 465, 468, 471 and 506(i) of the Indian Penal Code and the Trial is being proceeded with. P.W.1, de-facto complainant namely, N.Syamasundara Naidu, was also permitted to appoint a learned Counsel to assist the learned Public Prosecutor.

3. The stage of the case is that the examination of the other witnesses are over and the matter is posted for examination of the Investigating Officer. At this stage, the petitioner/de-facto complainant filed above Crl.M.P.No.9152 of 2021 under Section 216 of the Code of Criminal Procedure to frame additional charges under Sections 34, 109, 467 and 474 of the Indian Penal Code. The said petition was resisted by both the accused Nos.1 and 2 in the case as well as the Police by filing separate counter statements. By the order impugned in the Revision, the Trial Court considered Section 301 of the Code of Criminal Procedure and in view of the Section 301(2) of the Code of Criminal Procedure, held that the private pleader, who was appointed, cannot conduct an independent prosecution himself and therefore, he had no locus to plead on behalf of the prosecution and conduct the case. The Trial Court relied upon the judgment in B.Janakiramaiah Chetty Vs. A.K.Parthasarathi(2002 Cr. LJ 4062 (AP) and the judgment of the Hon’ble Supreme Court of India in Rekha Murarka Vs. The State of West Bengal  (2020) 2 SCC 474)(Criminal Appeal No.1727 of 2019) and held that within the bounds of the Code of Criminal Procedure, it is open for the private pleader to put-forth his written arguments post completion of evidence and learned Public Prosecutor’s arguments and held that a petition to alter the charges cannot be filed at this stage.

4. The order of the learned Magistrate, per se, cannot be sustained. Firstly, Section 301 of the Code of Criminal Procedure is not at all applicable to the instant case. It is useful to quote Sections 301 and 302 of the Code of Criminal Procedure, which read as follows:-

“301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or