CR.RA/41/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 41 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KANUBHAI JAMSHABHAI HADPATI - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR SHAKEEL A QURESHI for Applicant(s) : 1, MRS FD PATEL APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 04/03/2008 ORAL JUDGMENT : 1. By filing this criminal revision application u/s 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr. P. C.”), the petitioner has challenged the order passed by learned Addl. Sessions Judge and Presiding Officer, 8th Fast CR.RA/41/2006 2/4 JUDGMENT Track Court, Vyara on 6-1-2006 below application Exh,. 48 in Sessions Case No.31 of 2005, whereby the court allowed the application moved by the prosecution to make correction in the charge. 2. The petitioner is being prosecuted for the offence punishable u/ss 302, 323 and 524 of the I.P. Code. After recording of oral evidence of the witnesses to prove charge, the prosecution gave application Exh. 48 to make correction in the charge on the ground that according to the charge Nitin, the son of complainant died on account of injury sustained when he fell down on stone as the accused gave him push while he tried to intervene but the witnesses examined by the prosecution have in their depositions deposed that the accused hit the deceased with stone on his stomach and therefore correction is required to be made in the charge. 3. After hearing, the learned trial Judge allowed the application and directed to make correction in charge Exh. 5 framed against the petitioner. Being aggrieved by the said decision, the present criminal revision application has been filed. 4. I have heard learned advocate Mr. S.A. Qureshi for the petitioner and learned A.P.P. Mr. CR.RA/41/2006 3/4 JUDGMENT K.C. Shah for the opponent – State. 5. Under Section 216 of the Cr. P. C. any Court may alter or add any charge at any time before judgment is pronounced. Thus, Court has power to alter or modify charge already framed against the accused at any stage before judgment is pronounced. 6. Charge Exh. 5 framed against the petitioner indicates that Nitin the son of the complainant intervened in scuffle and fell down on the stone on account of push given by the accused and thereby sustained internal injuries in the stomach. 7. The prosecution filed the application for correction in the charge framed against the petitioner. Section 216 of the Cr.P. C. provides for alteration or modification of charge at any time before the judgment is pronounced. It does not provide for correction in the charge. Therefore, the learned trial Judge committed error in passing the impugned order. 8. It is settled proposition that charge has to be framed on the basis of the materials filed along with charge sheet. The Court framed the CR.RA/41/2006 4/4 JUDGMENT charge after considering the statement of witnesses recorded during the investigation. It appears that at the time of recording of evidence the same witnesses gave different version about the incident. Therefore, correction in the charge on such ground is not permissible as it is likely to prejudice the accused. The learned trial Judge committed error in allowing the application for correction in the charge which has resulted into grave injustice to the petitioner. Therefore, the impugned order is erroneous and perverse and it is required to be quashed and set aside. Hence, this application is required to be allowed. 9. In the result this application is allowed. The impugned order dated 6-1-2008 passed by learned Additional Sessions Judge & Presiding Officer, 8th Fast Track Court, Vyara below Exh. 48 in Sessions Case No. 31 of 2005 is quashed and set aside. Rule is made absolute. The trial Court shall proceed with the matter in accordance with law. D.S. is permitted. (Bankim N. Mehta, J.) /JVSatwara/