1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1640 OF 2009 Dr. Jyotikiran Prakash Gore. ... Applicant. V/s. The State of Maharashtra. ... Respondent. Mr. M.K. Kocharekar for the Applicant. Mrs. P.P. Bhosle, APP for the Respondent. CORAM : S.C. DHARMADHIKARI,J. DATED : 20th JANUARY 2010. P.C. :- The Applicant is the Original Accused. Sessions Case No. 147 of 1995 is pending before the learned Additional Sessions Judge – 2, Nasik. The Applicant requested for alteration of the charge. However, at some stage he had approached this Court by filing Criminal Writ Petition No.142 of 1997. On that Writ Petition the following order has been passed :- “ The Petitioner is allowed to withdraw the Petition with liberty to the Petitioner to approach the learned trial judge under Section 316 of the Cr.P.C. keeping the remedy thereafter open for the petitioner.” 2 2. Pursuant to the liberty granted by this Court, the Applicant applied for alteration of the charge. 3. The Additional Sessions Judge – 2, Nasik by the impugned order has rejected the application. He has rejected the Application only on the ground that the Division Bench order mentions Section 316 of Cr.P.C. and that provision is in- applicable in the present case. In other words, Section 316 does not deal with alteration of charge and the correct provision would be Section 216. However, construing and reading the order of the Division Bench as it is, the learned Judge, on a hyper-technical objection, rejected the Application of the Petitioner. Hence, this Second Petition. 4. It is well settled that mere mention of a wrong provision would not vitiate the exercise of power if the Court otherwise posseses that power. In other words, merely because there is some error in the order of the Division Bench and a wrong provision is mentioned therein, does not mean that the Trial Court is powerless and could not have been taken cognizance of the subject Application. The Sessions Case is pending from 1995. The learned Additional Sessions Judge would have been well advised in not rejecting such Applications on flimsy grounds but pass an order on merits thereon. Having failed to do that, I am of the opinion that the impugned order cannot be sustained. It is accordingly set aside. 3 5. The Application made by the Applicant/Accused to the Sessions Court/Additional Sessions Judge, Nasik, is restored to its file. The learned Judge to treat this as an application made for alteration of charge invoking its jurisdiction under Section 216 of Cr.P.C. It should thereafter proceed to pass appropriate orders in accordance with law, after hearing both sides. Let be this done within a period of six weeks from today. The Application is allowed in the aforesaid terms. (S.C. DHARMADHIKARI,J.)