IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14238 of 2007 MD. MAHMOOD, son of late Md. Rauf, resident of Mohalla – Juran Chapra, Kasai Tola, P S – Brahampura, District – Muzaffarpur. Versus 1. STATE OF BIHAR 2. Md. Zulfikar Ali son of late Md. Rauf 3. Akbari Khatoon wife of Md. Zulfikdar Ali Both residents of Molhalla – Juran Chapra, Kasai tola, P S – Brahmpura, District – Muzaffarpur. ----------- 05. 28.04.2009 Petitioner wants quashing of the order dated 9.10.2006 which has been passed in Complaint Case No.911 (C ) of 2005 by virtue of which the learned Judicial Magistrate, Ist Class, Muzaffarpur has rejected the petition filed on behalf of the petitioner to frame charge against the accused persons under section 380, 406 and 448 of the Indian Penal Code. Origin of the present complaint is that it was filed in the year 2005 where allegations had been made against accused persons by the complainant on many issues. Besides the allegation of assault, there is also allegation of snatching money as well as ornaments and some other items stated in the complaint. But somehow cognizance came to be taken only under sections 323 and 341 of the Indian Penal Code by the learned Chief Judicial Magistrate. Thereafter certain witnesses have been examined on behalf of the complainant and based on the evidence given by them a petition came to be field on behalf of the complainant that the substantive offence under other sections namely, sections 380, 406 and 448 is also made out. The petition in question was heard and after due consideration vide order dated 9.10.2006 learned Magistrate has - 2 - rejected the prayer of the complainant on the ground that the order taking cognizance is limited to sections 323 and 341 of the Indian Penal Code and it was not challenged under revisional jurisdiction and in that view of the matter there was no occasion now to frame charges against the accused persons for other offences namely, sections 380, 406 and 448. Contention of the learned counsel for the petitioner is that after the evidence had come in the matter before the trial court, in view of the provisions contained in section 216 of the Code of Criminal Procedure the court can alter or add any charge any time before judgment is pronounced. Since in the present case evidence is there which makes a substantive offence under the Penal Code then the complainant or the petitioner not choosing to challenge initial order taking cognizance limited to section 323 or 341 will not come in the way of framing charge for substantive offences. Learned counsel for the opposite party submits that fight is basically between two brothers. The evidence which has been led or has been recorded are not trustworthy and they are hearsay witnesses and that is the reason why the court was not inclined to amend or alter the charge. From perusal of the order impugned the above contention of the learned counsel for the opposite party is not reflected but be that as it may, keeping the provisions contained in section 216 of the Code of Criminal Procedure the trial court will be well advised to look into this aspect of the matter during the course of trial if evidence - 3 - of such kind emerges again. The application is disposed of with the above observation. rkp (Ajay Kumar Tripathi, J)