IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No. 38 of 2009 Judgment reserved on 27.5.2009 Date of decision: 29. 5. 2009 Deepak Kumar Datta …..Petitioner Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the petitioner: Mr. Rakesh Jaswal, Advocate. For respondents : Mr. J.S. Guleria, Assistant Advocate General, for respondent No. 1. Surinder Singh, J. (Oral) Respondent Nos. 2 to 10 are the accused in a State case filed by the petitioner herein under Section 365, 387, 506 and 120-B of the Indian Penal Code. The learned trial court has framed the charges against the accused-respondents for the above offences but the petitioner filed an application under Section 216 of the Code of Criminal Procedure for framing the charge under Section 392 of the Indian Penal Code and also under the Arms Act, in lieu of Section 387 of the Indian Penal Code against the accused persons, which was dismissed vide 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - order dated 17.2.2009, by the learned trial court, against which, the present revision petition has been filed by the complainant. As a matter of fact, in an inquiry or trial or appeal before any court, the Public Prosecutor or the Assistant Public Prosecutor is Incharge of the case as per the provisions of Sub Section (1) of Section 301 of the Code of Criminal procedure. Neither the complainant nor any third party can bypass his authority without seeking the permission of the court. Therefore, in my opinion, the application moved by the petitioner under Section 216 of the Code of Criminal Procedure could not have been entertained by the learned trial court without its permission and also the consent of the Public Prosecutor. Further, the charge under Section 387 of the Indian Penal Code stands already framed against the accused-respondents on the basis of the police report and the documents appended thereto. The learned trial court observed in the impugned order that neither the complainant nor any other witness have stated that there was any attempt to cause death or there was any recovery of the alleged gun. There was also nothing on record to show that the accused had either committed robbery or the gun in question was used as weapon of - 3 - offence to commit the crime. In other words, the court did not find the ingredients of Section 392 of the Indian Penal Code prima facie to frame the charge under that Section, which finding is borne out from the record and cannot be faulted. Legally the Criminal Procedure Code makes a provision in this regard also wide under Section 216 that during the course of the trial, any charge could be modified added or substituted and appropriate orders can be passed by the court at that stage if the circumstances so warrant. Therefore, qua the complainant impugned order is interlocutory which cannot be assailed in revision. Therefore, for the above reasons, the revision petition is dismissed. Cr.M.P.No. 202 of 2009. Infructuous. May 29 2009 (Surinder Singh),J. (cm)