1 CRI-1048-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1048 OF 2011 Sunil Rajaram Misale and anr. ..Petitioners Vs The State of Maharashtra ..Respondent -- Mr.Kedar Prabhu, for petitioners. Ms.Usha Kejriwal, APP for respondent State. -- CORAM : R.G.KETKAR, J. DATE : 5 th OCTOBER, 2011 P.C.: Heard Mr.Kedar Prabhudesai, learned counsel for the petitioners and Ms.Usha Kejriwal, learned APP for respondent State. 2] The petitioners are accused nos.1 and 2 in complaint lodged by the respondent for offences punishable under Sections 328, 354, 114, 2 CRI-1048-11.sxw 509 read 34 Indian Penal Code (for short “IPC”). In respect of the alleged incident dated 10 th February, 2010, F.I.R. was lodged on 17 th February, 2010. The first petitioner is the husband of original complainant and the second petitioner is her father-in-law. By this petition, the petitioners have challenged order dated 5 th March, 2011 passed by the learned 2 nd Ad-hoc Addl. Sessions Judge, Court No.14, Sewree, below exhibit 23. By that order, the learned Judge rejected the application filed by the petitioners under Section 216 of the Code of Criminal Procedure, 1973. It is against this order, the petitioners have instituted present petition. 3] In support of this petition, Mr.Prabhu submitted that under Section 216 of Cr.P.C., the Court has power to alter any Charge before the judgment is pronounced. In the present case, at the earliest available opportunity, the petitioners filed present application for dropping Charge under Section 328 IPC. He further submitted that there is no prima facie material on record to indicate that the petitioners have committed offence under Section 328 IPC. 3 CRI-1048-11.sxw 4] On the other hand, Ms.Kejriwal, learned APP supported the impugned order. 5] I have considered rival submissions made by learned counsel for the parties. It is not in dispute that the Charge was framed on 27 th September, 2010 and the present application under Section 216 Cr.P.C. was made on 3 rd May, 2011. Prior to filing the present application, the prosecution has examined three witnesses. In paragraph 7 of the impugned order, the learned trial Judge recorded that the witnesses have been already examined and their cross- examination is still remained. Having regard to the material on record, he did not find any propriety in dropping Charge under Section 328 IPC at this stage. In paragraph 8 of the impugned order, the learned trial Judge further recorded that the petitioners have filed present application belatedly only with a view to protracting the trial. 6] I do not find that the learned trial Judge has committed any error in passing the impugned order. As noted earlier, three witnesses are already examined by the prosecution and their cross- 4 CRI-1048-11.sxw examination is still remained. Therefore, no case for interference is made out. Hence, petition is rejected. Ad-interim relief granted on 11 th August, 2011 stands vacated. [R.G.KETKAR, J.]