A trial court cannot alter a charge without any new material to support the alteration.

Court No. - 82

Case :- CRIMINAL MISC. BAIL APPLICATION No. -

54813 of 2022

Applicant :- Chhote And Another

Opposite Party :- State of U.P.

Counsel for Applicant :- Shiv Badan

Counsel for Opposite Party :- G.A.

Hon'ble Ajai Kumar Srivastava-I,J.

Heard learned counsel for the applicants, learned

A.G.A. for the State and perused the entire record.

The instant application for bail has been moved on

behalf of the applicants, Chhote and Rakesh with

the prayer to enlarge them on bail in F.I.R./Case

Crime No.87 of 2022, under Sections 302/34, 201

I.P.C., Police Station Kurara, District Hamirpur

during pendency of the trial.

Learned counsel for the applicants has submitted

that initially a first information report came to be

lodged against co-accused, Munnesh and Chhuttan

under Section 364 I.P.C. by the first informant.

However, subsequently, the names of the present

applicants have surfaced during investigation and

charge sheet came to be submitted against the

present applicants under Section 306 I.P.C. His

further submission is that the present applicants

were earlier granted bail under Section 306 I.P.C.

by the Co-ordinate Bench of this Court vide its

order dated 14.07.2022 passed in Criminal Misc.

Bail Application No.29921 of 2022.

It is further submitted by learned counsel for the

applicants that at the stage of framing charge,

learned Sessions Judge, on the basis of certain

averments made in the statement of the witness,

Smt. Ahilya Devi, chose to frame charge under

Section 302/34, 201 I.P.C. against the present

applicants on the basis of same material which

was available before this Court earlier while the

present applicants were granted bail under Section

306 I.P.C.

His further submission is that there is no new

material available on record for framing charge

under Section 302/34, 201 I.P.C. The

accused/applicants are languishing in jail since

13.04.2022, who have no previous criminal history.

He has also fairly stated that there is one old case

i.e. Case Crime No.987 of 2013, under Sections

323, 354, 324 I.P.C. shown against the applicant

no.1 which is of trivial nature. He has also drawn

attention of this Court to the fact that the co-

accused, Munesh and Shailendra have already

been granted bail by the learned trial Court vide

its order dated 24.11.2022 passed in Bail

Application No.2043 of 2022.

His further submission is that in case, the

applicants are enlarged on bail, they will not

misuse the liberty of bail and they will also fully

cooperate with the trial court in getting the trial

concluded expeditiously. He has also submitted

that the applicants will not intimidate or pressurize

the witnesses or any other persons acquainted

with the facts of the present case.

Per contra, learned A.G.A. for the State has

vehemently opposed the prayer for grant of bail by

submitting that the learned trial Court was

competent to have altered charge under

appropriate section at the stage of framing charge.

Therefore, no fault with such an order can be

found. However, he has been unable to dispute

the fact that after conclusion of investigation and

submission of charge sheet, no new material has

been placed before the learned trial Court and the

present applicants were earlier granted bail under

Section 306 I.P.C. by the Co-ordinate Bench of this

Court vide its order dated 14.07.2022 passed in

Criminal Misc. Bail Application No.29921 of 2022.

on the basis of entire material available before this

Court However, he could also not dispute the other

factual submissions advanced by the learned

counsel for the applicants.

Having heard the learned counsel for the

applicants, learned A.G.A. for the State and upon

perusal of record, this Court finds that it is not

disputed that present applicants were granted bail

by the Co-ordinate Bench of this Court vide its

order dated 14.07.202