The power to alter or add charges under Section 216 of the Cr.P.C. is exclusive to the Court and cannot be sought by parties, ensuring judicial independence in charge framing.

ORAL ORDER

1. By way of this Revision Application under section 397 and 401 of Cr.P.C., the petitioner has challenged the order dated 08.01.2024 passed by learned Additional Sessions Judge, Savarkundla in Sessions Case No.7 of 2020 (Old Case No.66 of 2014).

2. Learned advocate for the petitioner submits that learned Sessions Judge has committed error in adding charge under section 216 of Cr.P.C. for the offence under section 302 of IPC on the application filed by the learned PP at Exh.44. He would submit that Hon'ble Apex Court in the case of P.Kartikalakshmi v/s. Sri Ganesh [ (2017) 3 SCC 347 ] categorically held that power of the Court under section 216 to alter or add any charge is independently and has to be exercised on its own and not at the instance of first informant de facto complainant or prosecution and therefore, learned Sessions Judge has committed serious error in adding charge of offence under section 302 of IPC. He also referred to judgment of this Court in the case of Sahdevsinh Natubha Zala v/s. State of Gujarat [ Criminal Revision Application No.384 of 2017 ] to submit that identical view has been taken by the Co-ordinate Bench while allowing the Revision and believed that the Court cannot alter charge at the behest of the prosecution. It is further submitted that adding of charge under section 216 of Cr.P.C. for the offence under section 302 of IPC is materially erred by the learned Trial Court and therefore, present Revision Application be allowed.

3. On the other hand, learned APP would submit that learned Trial Court has independently examined the documents available on record and came to conclusion that because of serious injury sustained by the deceased, he died. He would further submit that application Exh.44 was though moved by the learned PP before the learned Trial Court it was just information brought to the notice of the learned Trial Court about subsequent incident which took place and in that way, learned Sessions Judge has taken cognizance of subsequent incident placed on record and came to conclusion that offence under section 302 of IPC is required to be added. No illegality is committed by the learned Trial Court. It is further submitted that judgment relied by the learned advocate for the petitioner is not helping the petitioner and therefore, present revision application be dismissed.

4. Having heard learned advocates for the parties, it is necessary to refer translated version of para 4 and 5 being reasons of impugned order in allowing Exh.44 which reads as under :-

"4. Thus, looking to the above mentioned facts and circumstances, it is found that as per the case of the Prosecution, the said incident occurred on 13-04-2014 and in this incident, the accused no. 1 inflicted one sword blow on the head of the witness and the accused no. 2 inflicted two blows using an iron T to the witness on head. Whereas, accused no. 3 to 5 sat on the leg of the witness and instigated to assault the witness and as the accused no. 3 caught hold of the hands of the witness, the accused no. 1 inflicted four blows of pipe on both the shoulders of the witness. Accordingly, a complaint was registered under Section 143, 147, 148, 149, 307, 504, 506(2) of the IPC and Section 135 of the G. P. Act and at the end of the investigation, charge-sheet was filed regarding those offenses. The case was committed to this Court and as the accused no. 3 died, case has been decided as abated qua him. Thereafter, charge was framed vide Exh.28 regarding the above mentioned Sections and further statements of the accused were recorded vide Exh. 29 to 32, wherein the accused persons pleaded not guilty. Therefore, the case was adjourned for evidences of the Prosecution. Complainant Jaysukhbhai Bhanjibhai Rathod has been examined for the Prosecu