The court's power to alter or add charges before judgment is pronounced is comprehensive and unrestrained, provided there is material on record justifying the addition or alteration, as provided under Section 216 Cr.P.C.

JUDGMENT :

(Jyotsna Sharma, J.)

1. Heard Sri Vinod Kumar Tirpathi, learned counsel for the petitioner and Sri S.C. Mishra, learned AGA for the State.

2. This petition under Article 227 of the Constitution has been filed with the following reliefs:-

"I. Set aside the impugned Judgment and Order dated 26.07.2023 passed by Additional Sessions Judge, Court No. 3, Muzaffar Nagar in Criminal Revision No. 284 of 2022 (Jaipal and others Vs. State of U.P. and Another) as well as impugned order dated 03.11.2022 passed by Additional Civil Judge (Junior Division), Court No. 4, Muzaffar Nagar in Criminal Case No. 694/9 of 2019 (State Vs. Jaipal and others) arising out of Case Crime No. 374 of 2017 under section 147, 148, 149, 323, 324, 325, 504, 506 I.P.C. Police Station Kakrauli, District Muzaffar Nagar. (Annexure No. 5 and 7 of the writ petition).

II. Direct the learned court below to delete the section 326 IPC which is imposed upon the petitioner and other co-accused persons which is not made out against them."

3. Submissions of the petitioner are as below:-

On the basis of an FIR case crime no. 374 of 2017 was registered and investigated upon. The accused persons were chargesheeted and cognizance was taken by the concerned Magistrate. During the course of the proceeding, an application dated 07.06.2018 was moved before the Magistrate with the contention that besides offences mentioned in the chargesheet, an offence under section 326 IPC is prima facie disclosed from prosecution papers, therefore a charge under section 326 IPC may also be framed. The court concerned heard on the application and allowed the same. Aggrieved by the order passed by the Magistrate on 03.11.2022, the accused persons preferred a criminal revision no. 284 of 2022 (Jaipal and others vs. State of UP and another). This criminal revision was decided by the District and Sessions Judge, Muzaffar Nagar on 03.11.2022, whereby the revision was rejected and the order of the Magistrate was affirmed.

4. The contentions of the petitioner are that false FIR in this case has been lodged in collusion with the police, as a counter blast to an FIR, case crime no. 373 pf 2017, lodged from his side. Further that the injury reports of the injured in the instant case are doubtful documents. Another contention is that from the papers, no offence under section 326 IPC is made out and that the Judicial Magistrate passed an arbitrary order. The revisional court also did not consider the factual and legal position and wrongly passed the order affirming the order of the Magistrate.

5. One of the most vehement legal arguments of the petitioner is that after taking of cognizance, the Magistrate is not empowered to add or alter any sections. It is further argued that once charge has been framed, the court cannot change or add any section before any evidence has been led by the prosecution. In support of this argument, the judgment given by learned Single Bench of Allahabad High Court in Matters under Article 227 No. 2014 of 2023 (Vikul vs. State of U.P. and Another) has been placed before me.

6. Before I take up the legal issue raised by the petitioner, it shall be useful to refer to some more relevant facts as below:-

- After investigation, the police filed charge-sheet under sections 147, 148, 149, 323, 324, 325, 504 and 506 IPC. The court concerned took cognizance on 09.10.2017 and proceeded.

- The first informant moved an application dated 07.06.2018 with the submission that on the basis of the medical report of injured-Yashveer prima facie, besides other offence, offence under section 326 IPC is clearly made out. The investigating officer ignored the above evidence and deliberately filed a charge-sheet excluding the offence under section 326 IPC. The learned Assistant Prosecuting Officer moved an application with similar submissions and applied for framing of charge in additional section 326 IPC besides sections 147, 148, 149, 323, 324, 325, 504 and 506 IPC.

- The medical examination report of Yashv