MOHAMMAD NISSAR CHANDSAB MULLA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) PETITIONER is facing prosecution for offences punishable under Sections 465, 468 and 201, IPC before the learned JMFC, Hukeri at CC No. 831 of 1994. The stage of Sections 239/240, Cr. P. C. is yet to be reached. Before that stage, the complainant State filed an application before the learned Magistrate under Section 216, Cr. P. C. seeking addition to the charge for the offence under Section 471, IPC. Learned Magistrate dismissed it. State's revision has been allowed by the learned Sessions Judge. Petitioner accused is before this Court.

(2.) LEARNED Magistrate as well as the learned Sessions Judge have unnecessarily referred to Section 468, Cr. P. C. , and it is on interpretation of the said provision in one way that the learned Magistrate has dismissed the State's application and in another way that the learned Sessions Judge has allowed the State's revision petition. Reference to Section 468, Cr. P. C. in my opinion, is misplaced. As said earlier, the stage of Sections 239/240, Cr. P. C. has yet to be reached. As and when that stage is reached, it would be for the learned Magistrate, on consideration of the police report and the documents sent with it under Section 173, Cr. P. C. and making such examination, if any, of the accused as the Magistrate thinks necessary, and after affording the prosecution and the accused an opportunity of being heard, to come to the conclusion that the charge against the accused is groundless, in which event he would discharge the accused, or to come to the conclusion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, Cri. P. C. , which he is competent to try, and, which, in his opinion, could adequately be punished by him, in which event, he would frame charge in writing against the accused. In course of this exercise, learned Magistrate is not to be bound by the Sections mentioned in the charge sheet or by the absence of mentioning of a particular offence in the charge sheet. In the event he comes to the conclusion that the charge needs to be framed, he would do so on the basis of the above said material on record and not on the basis of the specific sections mentioned in the charge sheet. If he thus comes to the conclusion that the charge needs to be framed , he would also come to the conclusion as to for what offence/s charge needs to be framed. In course of that exercise, even if charge needs to be framed for a particular offence, not earlier mentioned in the charge sheet, reference to Section 468, Cr. P. C. , would be totally unnecessary. Learned Magistrate can still proceed to frame charge for whatever offences for which charge needs to be framed and in respect of which, according to the learned Magistrate, there is ground for presuming that the accused has committed the said offence/s triable under Chapter XIX, Cr. P. C. which he is competent to try, which, in his opinion, could be adequately punished by him. This being the position, the State's application has unnecessarily come to be considered. Such an application at that stage could not have been filed at all. Added to that, the said application purports to be under Section 216, Cr. P. C. The said provision speaks of adding to or altering any charge. It presupposes that the charge is already framed and it is only then that something can be added to it or it could be altered, as stated earlier. If the case has not reached the stage of Sections 239/240, Cr. P. C. , and if initially even the charge has not been framed, the question of invoking Section 216, Cr. P. C. for the purpose of adding to or altering the charge, does not arise.

(3.) IN view of the above discussion, the application filed by the State under Section 216, Cr. P. C. is dismissed. At the same time, it is made clear that after complying with Section 239/240, Cr. P. C. if the learned Magistrate comes to the conclusion that along with other offences, charge needs to be framed even for Section 471, IPC, then, he would be free to do so.