ORDER

Heard learned counsel for the petitioner. The opposite party has not entered appearance after service of notice.

2. Petitioner is the complainant in I.C.C. No. 175 of 1991 pending in the Court of Judicial Magistrate First Class, Khurda. On 11.10.1991 he filed a complaint petition alleging commission of offences under Secs. 427/448, IPC against the opposite party members who were the accused persons in that case. In the complaint petition, petitioner has stated that because of the demolition of the compound wall complainant sustained a loss of Rs. 2,000/- (two thousand). In his initial statement, however, petitioner did not state the amount of loss which he sustained. On 28.10.1991, the S.D.J.M. after perusing the complaint petition and initial statement of the complainant took cognizance of the offences under Secs. 426/34, IPC. Thereafter, the accused appeared, accusation was explained to him as per the summons procedure and trial taken up. During the midst of the trial when three witnesses were examined which includes the complainant, his father, and one Sudarsan Baliar Singh, petitioner filed an appli¬cation to alter the charge from under Sec. 426 to Sec. 427, IPC. Learned Magistrate vide the impugned order dated 17.3.1994 rejected that petition on the ground that in a case governed by the summons procedure, since charge is not being framed, taking cognizance of the offence under Sec. 427, IPC at such belated stage is not permissible under law. The other part of the im¬pugned order in which learned Magistrate refused to exhibit the document is, however, not challenged in this revision and nothing is argued in that respect.

3. Learned counsel for the petitioner argues that the afore¬said view expressed by the learned Magistrate regarding legal impermissibility to change the offence is itself incorrect. He adds, complainant suffer prejudice, if cognizance of the offence under Sec. 427, IPC, shall not be taken and explained to the accused. In that connection, he states that in the complaint it has been specifically mentioned that due to the mischief commit¬ted by the accused complainant suffered a damage of Rs. 2,000/- and therefore with due reference to the facts alleged cognizance of the offence under Sec. 427, IPC should have been taken.

4. On a combined reading of the provisions of Secs. 190 and 200, Cr.P.C. it is clear that at the stage of taking cognizance of the offence, the cognizance taking Magistrate pass appropriate order with due reference to the averments in the complaint peti¬tion, statement of the complainant recorded under Sec. 200, Cr.P.C. and also statements of witnesses, if any, examined at that stage. In this case while taking cognizance of the offence under Secs. 426/34, IPC, learned Magistrate has not indicated as to why he did not take cognizance of the offence under Sec. 427. To put it otherwise, on the face of the accusation stating the damage to be of Rs. 2,000/-, learned cognizance taking Magistrate did not explain why he took cognizance of the offence under Sec. 426, IPC when the alleged damage was to the extent of Rs. 2,000/-. The aforesaid circumstance is noted only to indicate that the present prayer of the complainant is not an after thought built up at a subsequent stage.

5. Learned trying Magistrate has turned down the prayer of the petitioner on the ground that since a charge is not framed in a case governed under the summons procedure, alteration of the offence by invoking the provision under Sec. 216, Cr.P.C. is not permissible. What is a charge and whether the provisions in Chapter XVII of Cr.P.C. are invocable in a case tried under Chapter XX, Cr.P.C. (Trial of Summons-cases by Magistrates) are the relevant questions crop up for adjudication.

6. In Section 2 relating to ‘Definitions’ Clause (b) pro¬vides that-

“(b) “Charge” includes any head of charge when the charge contains more heads than one.”

It is clear from the above quoted provisions that the term “charge” has not been defined