IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.Rev.Pet.No. 753 of 2008() ----------------------------- S.C. 815 OF 2005 OF ADDL. DISTRICT AND SESSIONS COURT (ADHOC-II) ERNAKULAM REVN. PETITIONER: 4TH ACCUSED ----------------------------- T.X. MARTIN, S/O.XAVIER THERULIL HOUSE, ASHOKAPURAM, ALUVA EAST VILLAGE. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA REPRESENTED BY EXCISE CIRCLE INSPECTOR EXCISE ENFORCEMENT AND NARCOTIC SPECIAL ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.N. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 7-04-2008 , THE COURT ON 07/04/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P.No. 753 of 2008 * * * * * * * * * * * * * * * * * * Dated: 7-4-2008 ORDER Petitioner who is the 4th accused in S.C. 815 of 2005 on the file of the Additional District and Sessions Court, (Adhoc-II) in Ernakulam challenges Annexure IV order dated 14-01-2008 passed by the trial court altering the charge as against the petitioner from Sec. 64 A of the Abkari Act to Sec. 58 of the said Act. 2. Adv. Sri. S. Sreekumar, the learned counsel appearing for the petitioner made the following submissions before me in support of his attack against Annexure IV order:- Annexure IV order is the outcome of C.M.P. No. 5905 of 2007 filed by the Addl. Public Prosecutor in-charge of the case. Even according to the Addl. Public Prosecutor who filed the said petition, alteration of the charge was necessitated not because any of the charges referred to in Sec. 216 Cr.P.C. were made out but there was a doubt as to which offence had been committed by A4. That is why the Public prosecutor filed the petition not under Sec. 216 Cr.P.C. but under Sec. 221 Cr.P.C. Going by Ext.P10 lease deed, the petitioner 4th accused had leased out the premises in question to the 3rd accused -:2:- and therefore, the petitioner cannot be held responsible for whatever offence committed in the tenanted premises in question. The trial judge also in a way accepted the petitioner's contention that there was no case made out for altering the charge under Sec. 221 Cr.P.C. But the charge has now been altered by resorting to Sec. 216 Cr.P.C. which was not the provision which was cited in the application nor invoked by the Public Prosecutor. There is absolutely no material before Court either produced along with the charge-sheet or in the evidence adduced before Court to justify the alteration of the charge as has been done in the impugned order . It has been held in AIR 1954 SC 266 that alteration of charge could be made only if there are materials warranting such a course. In the absence of any scintilla of evidence to indicate that Ext.P10 lease deed is sham and nominal the court below was not justified in altering the charge as if the petitioner was also responsible for the commission of the main offence. 3. No doubt the original court charge framed by the court on 18-08-2006 it which is specified that A1 to A3 committed offences punishable under Sections 55(a), 55 (i) and 58 of the Abkari Act and A4 committed offence punishable under Section 64 A of the Abakri Act. The Public Prosecutor who filed the petition (C.M.P. No. 5905) -:3:- has stated in the petition that from the evidence of the prosecution witnesses and the documents it is established that A4 committed an offence punishable under Sec. 55(a), 55 (i) and 58 of the Abkari Act. Whether there is evidence before court to justify the alteration of charge is a matter which the trial court itself has considered. In the absence of the entire prosecution records and the evidence adduced by the prosecution this Court will not embark upon an enquiry as to whether there is material before Court to justify the charge. The petitioner can very well recall any prosecution witnesses in case the facts of the case warrant such a course of action. I am sure that the trial judge will consider the contentions raised on behalf of the petitioner as well while deciding the question as to whether the petitioner has committed any of the offences in the altered charge. V. RAMKUMAR, (JUDGE) ani.