spb/- 1 6-8-wp2096-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2O96 OF 2010 Shri Samrat Babanrao Mahadik ... Petitioner. Vs. The State of Maharashtra ... Respondent. --- Mr. Dilip Bodake for the Petitioner. Mr. J.P. Kharge, APP for the State. ...... CORAM : V. M. KANADE, J. DATE : 06TH AUGUST, 2010. P.C. 1 Heard the learned counsel for the petitioner and the learned APP. 2 The petitioner being aggrieved by the order passed by the learned Magistrate dated 02.012.2009 and the order of confirming the said order by the Sessions Court dated 18.06.2010 has filed this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. The brief facts are that the complaint was registered against the petitioner herein for the offence punishable under sections 279 , 338 of the IPC r/w. spb/- 2 6-8-wp2096-10.sxw section 184 of the Motor Vehicle Act, vide FIR No. 154 of 2008, which was registered with the Bhuinj Police Station, Bhuinj dated 25.10.2008. A chargesheet was filed by the police and the said case was tried as a summary case no. 87/2009. Initially, a charge was framed by the learned Magistrate for commission of the offence punishable under sections 279 and 338 of IPC and under section 184 of the Motor Vehicle Act on 4.8.2009. The plea of the accused was also recorded and, thereafter, the prosecution examined three witnesses. After the three witnesses were examined, one of the witnesses stated in his examination-in-chief that the persons who were injured in the accident had expired and, therefore, the learned Magistrate was pleased to alter the charge and add offence under section 304-A of the IPC by exercising power vested under him under section 216 of the Cr.P.C.. Being aggrieved by the said order, the present petition has been filed since the Sessions Court confirmed the said order. 3 It is firstly submitted by the learned counsel for the petitioner that the learned Magistrate has erred in altering the charge and spb/- 3 6-8-wp2096-10.sxw adding the charge under section 304-A. He submitted that the witnesses had stated that after the injured person was admitted in the hospital, who was taking treatment for three months and after he was discharged from the hospital, he died. Therefore, it was submitted that it could not be said that the said death was caused due to accident and therefore, the charge under section 304-A ought not to have been framed against the petitioner herein. It is not possible to accept this submission. Section 216 of the Cr. P.C. clearly stipulates that at any stage before the judgment is pronounced, the Magistrate can alter the charge mentioned in the said section. Therefore, discretion in this regard is vested in the Magistrate to alter the charge if he feels from the evidence which is adduced before him that a particular offence has been committed by the accused. Since that discretion has been exercised by the learned Magistrate, it will not be appropriate for this court to sit in appeal and re-appreciate the evidence which has come on record for the purpose of coming to the conclusion that the said charge could not have been altered by the learned Magistrate. spb/- 4 6-8-wp2096-10.sxw 4 It is then submitted by the learned counsel for the petitioner that one of the requirements of section 216 is that after alteration of the charge, a duty has been cast on the Magistrate to explain the said charge to the accused. He submitted that the said charge was not explained. He further submitted that the petitioner had applied for certified copy of the said order and certified copy was supplied to him on 24.12.2009. It is submitted that in the said certified copy it is not mentioned that the charge was explained and interpreted to him. It is then submitted that subsequently the learned Magistrate appears to have change the record and added the said particular sentence. This submission also cannot be accepted. The copy which is annexed to the petition clearly reveals that the certified copy which was supplied was of the earlier charge which was framed on 4.8.2009 and not of the subsequent alteration of the charge dated 24.12.2009. In any case, it is settled position in law that once a record of the court is prepared, presumption is raised that the record is properly maintained and it is not open for the party to question the correctness of the said record, as held by the Apex Court in the case of A.R. Antuley vs. Ramdas Nayak. spb/- 5 6-8-wp2096-10.sxw 5 There is no substance in any of the submissions made by the learned counsel for the petitioner. Petition is dismissed. [V.M. KANADE, J.]