CRIMINAL MISCELLANEOUS No.51265 OF 2007 ------- In the matter of an application under section 482 of the Code of Criminal Procedure ------- SIPAHI RAM son of Raghunath Ram, resident of Village-Baheri, P.S.-Karamchat, Dist.-Kaimur at Bhabua ……. …….Petitioner Versus 1.STATE OF BIHAR 2.Dina Dubey son of late Shivnandan Dubey resident of village-Baheri, P.S.-Karamchat, Dist.- Kaimur at Bhabua ….. …..Opp.Parties ------ For the petitioner: Mr.Tribhuwan Narayan For the State: Mr.Shiwesh Chandra Mishra, Addl.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The sole petitioner, who is accused in Complaint Case No.1053 of 2003, has come before this court with a prayer to quash an order dated 7.9.2007 passed by 1st Additional Sessions Judge, Kaimur at Bhabua in Sessions Trial No.234 of 2005/21 of 2006. By the said order, learned Trial Judge has allowed the petition filed on behalf of the complainant/prosecution for substituting./amending the charge under section 301 of the Indian Penal Code in place of section 304 of the Indian Penal Code. The learned Trial Judge has allowed the petition filed by the complainant by its order dated 7.9.2007. 2. Short fact of the case is that on 15.12.2003 opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Bhabua which was numbered as Complaint Case No.1053 of 2003 against the petitioner and other twelve accused persons on an allegation that on the eve of Durga Puja at 2 the Puja place co-accused Khelau Ram was carrying a weapon i.e. pistol and he was trying to open fire. In the meanwhile, father of the co-accused arrived and tried to stop him from firing but fire was opened and father of the co-accused Khelau Ram received fire arm injury and he succumbed to the injury. According to the complainant, the occurrence took place on 4.10.2003 at about 5.30 P.M. The complaint was filed for the offences under sections 302, 144, 147 and 149 of the Indian Penal Code and section 27 of the Arms Act. Subsequently, the learned Magistrate took cognizance of the offences under sections 301, 144, 147 and 149 of the Indian Penal Code and section 27 of the Arms Act. Since the case was triable by the court of sessions, it was committed to the court of sessions and charges were framed under sections 304, 304/149, 144 and 147 of the Indian Penal Code and section 27 of the Arms Act and during trial stage by the impugned order the learned Sessions Judge has allowed the petition filed by the complainant/prosecution for amending/substituting the charge framed under section 304 Indian Penal Code to section 301 of the Indian Penal Code. 3. Aggrieved with the impugned order, the petitioner has approached this court by filing the present petition. On 31.1.2008, while issuing notice to opposite party no.2, this court directed that, in the meantime, further proceedings in Sessions Trial No.234 of 2005 pending in the court of learned Ist Additional Sessions Judge, Kaimur at 3 Bhabua, shall remain stayed. On 2.2.2009 this petition was admitted for hearing. The opposite party no.2 had already entered his appearance and, as such, no order was passed for issuance of notice to opposite party no.2. In the meanwhile, it was directed that further proceeding in Sessions Trial No.234 of 2005 pending in the court of 1st Additional Sessions Judge, Kaimur at Bhabua, shall remain stayed. The order of stay is still continuing. 4. Despite the fact that opposite party no.2 had already appeared through his counsel, at the time of hearing none has appeared on his behalf nor any counter affidavit has been filed. 5. Mr. Tribuhwan Narayan, learned counsel for the petitioner, while challenging the impugned order, submits that only few months back the complainant/prosecution had filed the same petition i.e. for amending/substituting charge framed under section 304 of the Indian Penal Code to section 301 of the Indian Penal Code and the learned Trial Judge after hearing both the parties and assigning detailed reason had not entertained the same and disposed it of by its order dated 15.1.2007. It was submitted that without any substantial change in the circumstance, at subsequent stage again same prayer was made by filing the petition by prosecution on 17.8.2007 and the learned Sessions Judge, without referring any substantial material for amending the charge, has allowed the petition. 6. Learned counsel further submits that even 4 present complaint petition was filed by the complainant as per the instance of the accused persons, who were involved in the murder of the father of the co-accused. While referring to annexure-2 to the petition i.e. photo copy of the first information report of Bhagwanpur (Karamchat) P.S. Case No.98 of 2003 which was registered on 5.1-0.2003, it was submitted that for the murder of father of the co-accused said first information report was lodged against number of accused persons. The police after registering the said first information report, which is the subject matter of the present case submitted charge-sheet against the accused persons. In a calculative way much after the occurrence as well as lodging of the first information report at a belated stage on 15.12.2003 the present complaint was filed in which it has been alleged that the petitioner and co-accused-Khelau Ram were involved in the death of father of Khelau Ram. It was submitted that since both the cases i.e. Complaint Case No.1053 of 2003 and first information report i.e. Bhagwanpur (Karamchat) P.S.Case No.98 of 2003 were in relation to death/murder of father of Khelau Ram, the trial of both the cases is proceeding simultaneously before the same court. It was further submitted that repeated petitions for amendment of charge was filed by the prosecution only with an object to delay the conclusion of the trial in the case which was instituted on the fardbeyan of co-accused Khelau Ram. Accordingly, it has been prayed to set aside the impugned order. 7. In absence of any representation on behalf of 5 opposite party No 2, I have heard Mr Shivesh Chandra Mishra, learned Additional Public Prosecutor appearing on behalf of the State. 8. Besides hearing learned counsel for the parties, I have also perused the material available on record. After going through the order dated 15.01.2007 which is Annexure-3 to the petition passed by the learned Additional Sessions Judge-I, Kaimur at Bhabhua in Sessions Trial No 234 of 2005, it is evident that the petition dated 09.01.2007 which was filed on behalf of the prosecution for amending of charge from Section 304 to Section 301 of the Indian Penal Code was heard by the Additional Sessions Judge. The learned Additional Sessions Judge has pointedly considered and recorded in its order regarding application of Section 301 and Section 304 of the Indian Penal Code and by assigning the detailed reason, the learned Additional Sessions Judge did not allow the prayer for amendment of section 301 of the Indian Penal Code. After about eight months again same prayer was made by filing a petition dated 17.08.2007 by the prosecution for amending the charge. It is not in dispute that according to Section 216 of the Criminal Procedure Code, charge can be amended at any stage but the Court is of the opinion that in the present case, learned Additional Sessions Judge, while allowing the prayer of prosecution, had not taken judicious approach rather in a mechanical manner, has allowed the same. It further appears that the learned Additional Sessions has not discussed any 6 evidence or material and only on the basis of order of cognizance which was passed under Section 301 and other sections of the Indian Penal Code has allowed the prayer for amendment. The learned Additional Sessions Judge has failed to appreciate that in the present case, charges were framed under Section 304 of the Indian Penal Code and, as such, without any substantial change or noticing any material on record, it was not desirable for the learned trial Judge to allow the petition for amendment of charge which was basically filed to delay the conclusion of trial. Accordingly, the Court is of the opinion that it is a fit case for interference with the impugned order and, as such, order dated 07.09.2007 passed by the Additional Sessions Judge I, Kaimur at Bhabhua in Sessions Trial No 234 of 2005 is hereby set aside. 9. Keeping in view the fact that matter had remained pending for a long time, it is desirable to direct the Court below to proceed with the case expeditiously and conclude the same preferably within a period of six months from the date of receipt/production of a copy of this order. 10. With the above observation and direction, the petition stands allowed. Patna High Court The 26th November,2010 Md.S./NAFR ( Rakesh Kumar, J.)