1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 271 OF 2010 Sachin Dnyaneshwar Mule and others ..PETITIONERS -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. J.R. Shah, Advocate for the petitioners Mr. V.D. Godbharale, A.P.P. for respondent. ........ WITH CRIMINAL APPLICATION NO. 2409 OF 2010 IN CRIMINAL WRIT PETITION NO. 271 OF 2010 Prasad S/o Sharadchandra Kolapkar ..APPLICANT -VERSUS- Sachin Dnyaneshwar Mule and others. ..RESPONDENT ......... Mr. H.F. Pawar, advocate for applicant. Mr. V.D. Godbharale, A.P.P. for respondent no. 5. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 27 th October, 2010. PER COURT : 1. By this Petition, the petitioner challenges the order dated 3rd February, 2010 rendered below Exhibit-29 in Sessions Case no. 47 of 2007, whereby the learned Sessions Judge directed framing of an additional charge under Section 304-B r/w Section 34 of the Indian Penal Code. Having heard the learned 2 Advocates of the parties and on consideration of the material on record, it appears that the petitioners were chargesheeted for the offence punishable under Sections 304-B, 306, 498-A r/w Section 34 of the Indian Penal Code. The charge was already framed vide Exhibit-11 for the offences punishable under Section 306, 498-A r/w Section 34 of the Indian Penal Code. The learned A.P.P. thereafter filed an application (Exhibit-29) seeking framing of charge under Section 304-B of the Indian Penal Code. That application was opposed by the petitioners. The application came to be allowed. Relying upon the certain observations of the learned Single Judge in “Krishnammal V/s The Revenue Divisional Officer and ors” {2008 CRI.L.J. 2845} (Madras), the learned Advocate for the petitioners submit that the A.P.P. had no locus- standi to file an application for framing of an additional charge. It appears that the learned Single Judge observed that the trial Court had framed the charge under Section 302 of the Indian Penal Code on basis of available record, and therefore, it was totally unwarranted on the part of the revisional petitioners (complainant) to file Criminal Misc. Petition seeking framing of additional charges. The learned Single Judge of Madras High Court held that it is the Court alone, who can exercise powers to frame charge or alter it or add new charges in view of Sections 211 and 216. There can not be duality of opinion that the framing of additional charge or 3 alteration of charge is a power of Court and it can not be insisted upon by any party that particular charge ought to be framed. In the present case, the charge sheet itself filed for the offence under Section 304-B of the Indian Penal Code along with other offences reported against the petitioners. The charge for the offence under Section 304-B purports to dowry death and requires following ingredients : (i) That, the death of the married woman ought to have occurred within a period of seven years of marriage; (ii) That, the death must under the unnatural or suspicious circumstances; (iii) That, the married woman ought to be allegedly subjected to matrimonial cruelty soon before her death, by the husband or his relative on account of failure to meet unlawful demands. 2. In the present case, the learned Sessions Judge found that prima facie case made out against the petitioners did satisfy the litmus test. Therefore, the charge for offence under Section 304-B of the Indian Penal Code seems to have been added. It is made clear, however, that such a charge ought to be treated as 4 alternate charge. So, the charge for the offence under Section 304- B of the Indian Penal Code shall be framed and alternatively the charge for the offence punishable under Section 306 may be set out in the charge Exhibit-11. With these clarification the Petition is disposed of as there is no substantial reason to interfere with the discretionary order of the trial Court. In view of the disposal of the Criminal Writ Petition, nothing survives in the Criminal Application No. 2409/2010, hence same stands disposed of. (V.R.KINGAONKAR) JUDGE gas/criwp271.10