NAZIM KHAN Vs. STATE

JUDGEMENT

(1.) This Criminal Misc. (Main) 2679 of 2000 is directed against the judgment and order of the Additional Sessions Judge, who by his order dated 23.2.2000, on a revision petition filed by the complainant/witness, refused to exercise his powers and order alteration of charge from Section 325, Indian Penal Code to Section 326 or 307, Indian Penal Code, as prayed for by the petitioners herein.

(2.) From the record before me, it appears that during the fag end of the trial when the matter was fixed for final arguments, the complainant, who are also witnesses in the case arising out of FIR No. 228/92, Police Station Seelampur, under Section 325/34, Indian Penal Code, had moved an application for amending the charge. It was their case that a perusal of the MLC would show that a charge is sustainable under Section 326 or Section 307, Indian Penal Code and, therefore, the charge should be amended. The learned Metropolitan Magistrate by his order dated 18.1.2000 came to the conclusion that the matter has been fixed for final arguments and that the application for alteration of a charge does not merit any consideration and, therefore, dismissed the same fixing the case for final arguments for 15.2.2000. It was this order that was challenged by the complainant / witness before the Additional Sessions Judge who held that the only short question raised by the petitioners is that the learned Metropolitan Magistrate should alter the charge from Section 325 to Section 326/307, Indian Penal Code. The learned Additional Sessions Judge, after going through the petition, returned a finding that the case is at a final stage and that the revision petition has been filed without the consent of the learned Additional Public Prosecutor and, therefore, the complainants, who are also witnesses in the case, have no locus standi to take part in the proceedings in the manner they have done. Furthermore, the case being at final stage, it would not be proper to consider altering the charge and, therefore, the learned Additional Sessions Judge declined to interfere both on the grounds of maintainability and impropriety. The petitioners, therefore, being aggrieved of the order dated 23.2.2000 have filed the instant petition.

(3.) It is the case of the petitioners before me that the complainant could always maintain a revision petition in the absence of a State case even though the State is not aggrieved of the proceedings. It is undoubtedly true that this Court has jurisdiction to entertain a petition on behalf of a complainant under Section 482 of the Code of Criminal Procedure, which power has been upheld by the Supreme Court in the case of Kirshnan v. Kirshnaveni and Another, 1997(1) Recent C.R. 724, where the Supreme Court has held that: