The power to alter the charge under Section 216 Cr.P.C. is exclusive to the Court and can be exercised at any time before the judgment is pronounced. The alteration must be founded on material available on record.

JUDGMENT :

1. Sri Birendra Kaushik, learned counsel for the applicants and Sri Pankaj Saxena, learned A.G.A.I appearing for the Stateopposite party.

2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 28.08.2020 passed by the Additional Session Judge, Court Room No.3, Mathura, in exercise of powers under Section 216 Cr.P.C., in Session Trial No. 234 of 2016 (State Vs. Smt. Rekha and others) under Section 306 I.P.C. Police Station Jamunapar District Mathura.

3. Briefly stated the facts of the case are that an F.I.R. dated 17.01.2016 was lodged by the opposite party no. 2 against the applicants which was registered as Case Crime No.0012 of 2016 under Sections 147, 148 and 302 I.P.C. at Police Station Jamunapar, District Mathura. After investigation the police submitted a chargesheet against the applicants under Section 306 I.P.C. on 17.04.2016 and cognizance on the chargesheet was taken by the Additional Chief Judicial Magistrate, IV, Mathura on 06.05.2016.

4. The statements of the prosecution witnesses were recorded and thereafter an application (paper no. 68 Kha) was moved by the informant before the court to alter the charge from that under Section 306 to Section 302 I.P.C. The informant contended that the F.I.R. was registered under Sections 147, 148 and 302 I.P.C. and despite sufficient evidence being collected, the chargesheet was filed by the police only under Section 306 I.P.C. It was contended that the statements of the prosecution witnesses which had been recorded indicated that the charge under Section 302 was also made out and accordingly the application had been filed for altering of the charge.

5. The accused filed their objections (paper no. 74 Kha) seeking to contend that the application filed under Section 216 Cr.P.C. was against the provisions of law and the criminal proceedings had been initiated maliciously with a view to falsely implicate the accused.

6. The trial judge, upon due consideration of the contentions of the parties, the material on record and also the evidence of the prosecution witness, has passed an order under Section 216 Cr.P.C. accepting the application for altering of the charge. Aggrieved against the aforesaid order, the present application under Section 482 Cr.P.C. has been filed by the accused-applicants.

7. The principal contention sought to be raised by the counsel for the applicants is that none of the witnesses produced by the prosecution before the court was an eye witness and as such their statements could not have been relied upon by the trial judge. The other argument raised is that the applicants have been falsely implicated and the proceedings are malicious.

8. Sri Pankaj Saxena, learned A.G.A.I appearing for the State-opposite party points out that the learned trial judge has duly considered the entire facts and circumstances of the case and the statements of all the prosecution witnesses. He also points out that one of the statements which have been considered by the trial judge is that of P.W. 2 who claims to be an eyewitness and as such the contention of the learned counsel for the petitioner is that none of the statements which have been considered is of an eyewitness is factually incorrect. The other contention which is sought to be raised on behalf of the applicants relates to their defence which may be raised at the appropriate stage before the trial judge and cannot be a ground to challenge the order passed under Section 216 Cr.P.C.

9. Rival contentions now fall for consideration.

10. In order to appreciate the controversy, the relevant provision under Section 216 Cr.P.C. may be adverted to.

“216. Court may alter charge.-(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prej