1 WP-3269-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 3269 OF 2009 Shri Raghvendra @ Nagendra Hanumanta Naikvi @ Vira. ..Petitioner (Orig.accused N.4) Vs. The State of Maharashtra ..Respondent Mr. Jagish B.Chaudhary i/b. Ranvir S. Shekhawat, Advocate for the petitioner. Ms. S.V.Gajare, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 15th July, 2010. P.C. 1. Heard the learned Counsel for the petitioner. 2. The present petition is filed by original accused No.4 in Sessions Case No. 862/2008 pending before the Sessions Court, Pune. The offence was registered on the basis of a report lodged by one Sukhadev @ Sukesh Suresh Dangat about murder of his cousin. In the FIR, he had stated that he had seen four accused persons, who had come out from a vehicle with weapons and two of them armed with revolvers had fired on the deceased and after the incident, all the 2 WP-3269-09.sxw four persons ran away in Esteem Car. He gave names of four persons in the FIR. On the basis of that, offence under Section 302 read with Sec. 34 IPC and under the Arms Act came to be registered. During investigation, statements of several other persons, who claimed to be eye-witnesses, came to be recorded and it was revealed that in fact there were six persons, who had come by that vehicle and the murder was committed by them. In view of that, police filed charge-sheet against six persons. However, charge was framed by the trial court under Sec. 302 read with Sec. 34 IPC and under Section 120B read with Sec. 34 IPC and under the Arms Act. Later on, Special Public Prosecutor filed an application under Section 216 Cr.P.C. for alteration of charges. According to him, in view of the material collected by the police during investigation, the charges under Sections 147, 148 and 302 read with Sec. 149 should have been framed and he prayed accordingly. The application was opposed on behalf of the accused persons. Taking into consideration the facts and circumstances, the Additional Sessions Judge allowed the application by the impugned order dated 18.11.2009. That order is challenged in the present petition. 3. The learned Additional Sessions Judge, while allowing the application for alteration and addition of charges, has noted the facts disclosed in the charge-sheet. He also noted that the trial has not yet commenced and 3 WP-3269-09.sxw therefore no prejudice would be caused to the accused persons if the charges are altered at this stage. 4. Sec. 216(1) Cr.P.C. clearly provides that any Court may alter or add to any charge at any time before judgment is pronounced. It is settled position of law that the charges can be altered or added at any time before the pronouncement of the judgment. However, at the time of addition or alteration of the charges, the Court has to see that the accused is not prejudiced by such additions or alterations and if trial has already commenced and some witnesses are examined, the Court may allow the accused to recall any of the prosecution witnesses for further cross- examination so that in view of the additions and alteration of charge, witnesses may be effectively cross-examined and accused may properly present his defence. In the present case, as the trial had not commenced before the impugned order for additions and alteration of charges, no question of causing any prejudice to the accused would arise. 5. The learned Counsel for the petitioner relied upon Verghese Stephen v. Central Bureau of Investigation 2007 Cri. L.J. 4180 wherein Delhi High Court held that the charges which are already framed can be altered and/or added provided there is some progress in the trial and some material comes before the 4 WP-3269-09.sxw Court to enable it to alter or add the charge already framed. With due respect, in my considered opinion, it is not necessary that before the charges can be altered or added, the trial should have been commenced. The only requirement is that there should be material for such addition or alteration and that precaution should be taken that accused are not prejudiced by the same. In the present case, police have already filed charge-sheet against six persons on the basis of the statements of several witnesses recorded during investigation. It appears that while framing charges earlier, the Court had not carefully perused the charge sheet and the police papers and, therefore, an application was made under Sec. 216 Cr.P.C. The learned Additional Sessions Judge carefully perused the charge sheet, police papers and after hearing parties, came to conclusion that such addition or alteration of charges is necessary in the interest of justice.Taking into consideration this legal position,I find no illegality in the impugned order. 6. Therefore, the petition stands dismissed. (J.H.BHATIA,J.)