1 cr-wp-3144-09 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. W.P. NO. 3144 OF 2009 Ramesh Thakurdas Fatnani ..Petitioner Vs. State of Maharashtra and Ors. ..Respondents .... Ms. Charanjeet Chanderpal Adv. for Petitioner Mr. V.B.Konde-Deshmukh APP for State Mr. S.H.Joshi Adv. for respondent no.2. .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 2, 2010 P.C.: 1 Heard the learned advocate for the petitioner and the learned APP for the State. 2 The petitioner was married to respondent no.2. Thereafter, some dispute arose between the parties hence, respondent no.2 lodged FIR against the petitioner at Mulund Police Station, Mumbai being CR No. 366 of 1996. The FIR was registered under Sections 323, 504, 498- A of IPC. After completion of investigation, the charge sheet came to be filed against the petitioner inter alia under Section 498-A of IPC. The 2 cr-wp-3144-09 case is numbered as C.C.No. 1702/P/1996 and it is pending before the learned Metropolitan Magistrate, 27th Court, Mulund, Mumbai. 3 Being aggrieved by the order of the learned Magistrate passed in the month of July, 2009, the petitioner has approached this Court. In the said order, the learned Magistrate has observed that after hearing both sides and after reading the charge sheet and the statements of witnesses, there is prima facie evidence to frame charge under Section 498-A of IPC. The learned Magistrate in the said order further observed that though the accused is charge sheeted under Section 498-A of IPC, charge has not been framed under Section 498-A of IPC, hence, accused was directed to remain present for charge. 4 Thus, basically, the petitioner is aggrieved by the addition of Section 498-A of IPC to the charge which was framed against him. 5 The learned counsel for the petitioner submitted that earlier charge came to be framed by the learned Magistrate on 8.8.2002 against the petitioner and the said charge was only under Sections 323, 504, 506-II of IPC. He submitted that thereafter after a period of almost seven years, this charge under Section 498-A of IPC has been added by the learned Magistrate whereby serious prejudice has been caused to 3 cr-wp-3144-09 the petitioner. 6 As far as the submission that serious prejudice was caused to the petitioner is concerned, it is seen that petitioner was given an opportunity to make his submissions before the trial Court decided to add charge under Section 498-A of IPC. It is an admitted fact that written say was also filed by the petitioner in relation to the addition of charge under Section 498-A of IPC. Thus, it is seen that opportunity was indeed given to the petitioner before the trial Court proceeded to add charge under Section 498-A of IPC. Thus, there is no merit in this submission. 7 The next contention raised by the learned advocate for the petitioner is that no reasoned order was passed by the learned Magistrate in respect of addition of charge under Section 498-A of IPC. On going through the order passed by the learned Magistrate, I find that it is a sufficiently reasoned order, no further reasons were necessary. Thus, there is no substance in this contention. Thus, I find no merit in this submission. 8 Thereafter, the learned advocate for the petitioner submitted 4 cr-wp-3144-09 that application for addition of charge under Section 498-A of IPC was made at the behest of the complainant i.e. respondent no.2. As far as this submission is concerned, it is an admitted fact that the learned Public Prosecutor who was conducting the trial had preferred application for addition of the charge. The said application is signed by the learned Public Prosecutor and it is on this application after opportunity was given to the petitioner that the trial Court proceeded to frame charge under Section 498-A of IPC. Thus, it cannot be said that at the behest of the complainant the charge under Section 498-A of IPC came to be added. 9 Lastly, it was contended that earlier charge under Sections 323, 504, 506-II of IPC came to be framed on 8.8.2002 and thereafter after a period of seven years this charge under Section 498-A of IPC came to be added which causes serious prejudice to the accused. As far as this aspect is concerned, section 216 of Cr.P.C. provides that Court may alter or add charge any time before judgment is pronounced. In order to better appreciate this contention, it would be necessary to reproduce Section 216 of Cr.P.C. which deals with addition or alteration of a charge by Magistrate. Section 216 of Cr.P.C. reads as under: “ 216. Court may alter charge-- (1) Any Court may alter or add to any charge at any time before judgment is 5 cr-wp-3144-09 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 prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is 6 cr-wp-3144-09 necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. ” 10 On going through the provisions of Section 216 of Cr.P.C. it is quite clear that the charge can be altered at any stage before the judgment. The section does not specify any time period but in fact, it says that the Court may alter or add any charge at any time before the judgment is pronounced. Admittedly, in the present case, the trial has just started. Therefore, the question of the judgment being delivered at this stage does not arise. The Section makes it very clear that any time prior to the judgment being pronounced, the charge may be altered or added. Thus, in view of the provisions of Section 216 of the Cr.P.C. and the material on record no error can be found with the action of the learned Magistrate in proceeding to add the charge under Section 498- A of the IPC. Looking to the above facts, no case is made out for quashing of order dated 18.7.2009. 11 After the entire evidence is led, it is for the learned Magistrate to independently come to the conclusion whether case is made out 7 cr-wp-3144-09 under Section 498-A of IPC or not. 12 Petition is disposed of. [ SMT. V.K.TAHILRAMANI, J.]