IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11860 of 2007 1. PREM CHAND MAHTO @ PREM CHAND PRASAD, SON OF BECHU MAHTO. 2. MOST. TETARI, WIFE OF BECHU MAHTO. 3. JAGDEO PD. SON OF RAM LAGAN RAI. ALL RESIDENT OF VILLAGE-KUJILAHI, P.S. NAUTAN, DISTRICT- WEST CHAMPARAN. ………………………………………………………….PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. SHEO SHANKAR PD., SON OF AYODHYA MAHTO, RESIDENT OF VILLAGE-KUJLAHI, P.S. NAUTAN, DISTRICT-WEST CHAMPARAN. ………………………………………………………..OPPOSITE PARTIES. ----------- For the Petitioners : Mr. Arbind Kumar Sharma, Advocate. For the State : Mr. Umesh Prasad Singh, A.P.P. For O.P. No.2 :Mr. Ram Kishun Prasad, Advocate. -------------- O R D E R All the three persons who have been arrayed as accused in Complaint Case No.2310(C) of 2002 and against whom a charge under Section 323 I.P.C. has already been framed have now prayed for the quashing of the order dated 26.7.2006 passed therein by the learned Sub Divisional Judicial Magistrate, West Champaran at Bettiah, whereunder he has directed for framing additional charges under Sections 406 and 420 I.P.C. against the petitioners on the basis of materials having come on record in course of the trial and the subsequent order dated 27.11.2006 passed by the learned Sessions Judge, West Champaran at Bettiah in Cr. Revision No.212 of 2006, whereby he has dismissed the revision as being not maintainable. - 2 - From the submissions advanced by the learned counsel for the petitioners the question which falls for consideration is whether after holding a due inquiry under Section 202 Cr.P.C., a prima facie case only under Section 323 I.P.C. is made out and charge is framed thereunder, the trial court in course of the trial is competent to frame additional charges on the basis of materials which come on record in course of the evidence of the witnesses examined at the trial. Section 216 Cr.P.C. provides for the court to alter charge and sub Section (1) thereof provides that any court may alter or add to any charge at any time before judgment is pronounced. As held in the case of Kantilal Chandulal Mehta Vs. State of Maharashtra (AIR 1970 SC 359) the Criminal Procedure Code gives ample power to the court to alter or amend a charge provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving him a full opportunity of meeting it and putting forward any defence opened to him on the charge finally preferred against him. The expression “add to” in Section 216 does not mean the addition of a few words to the existing charge but means the addition of a new charge. Sub Sections (1) and (2) of Section 216 apply to all courts and have reference to cases where after disclosure of facts in evidence or the plea of the accused, or by reason of other circumstances it becomes necessary to alter or add a charge and such additions or alterations can be made more than once. It appears that in course of the trial from the deposition of - 3 - the witnesses’ disclosure of facts were made which made out a case of commission of offences under Sections 406 and 420 I.P.C. and taking into account a petition filed by the prosecution trial court proceeded to frame additional charges. There is no apparent illegality in the decision of the court to frame additional charges. However, to ensure a fair trial, if so required, the court will allow the parties opportunity to take such steps, as may be necessary, to prosecute or to meet the new charges such as calling for a fresh witnesses or recalling witnesses. In view of the discussions made above, I find no merit in this application which is accordingly dismissed with a direction to the court below to give a reasonable opportunity to the defence to defend their case. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 20th of February, 2009. Pradeep Srivastava/A.F.R.