STATE OF GUJARAT Vs. PATEL MANU RANCHHOD

JUDGEMENT

(1.) This revision application has been preferred by the State against the order dated 2nd April 1973 Ex. 2 passed by the learned Sessions Judge Bulsar at Navsari in sessions case No. 42 of 1972 whereby original charge framed against accused Nos. 1 and 2 under secs. 395 397 and 307 I.P.C. and under secs. 326. I.P.C. against accused No. 1 and under sec. 323 I.P.C. against accused Nos. 2 3 4 and 5. No charge was framed against accused Nos. 6 7 and 8.

(2.) Mr. A. H. Thakar learned Assistant Government Pleader who appeared on behalf of the State urged that the interpretation put by the learned Sessions Judge on the decision of this Court in the case of State of Gujarat v. Mahmad Kasam and another A.I.R. 1967 Gujarat 169 is absolutely erroneous. He urged that no doubt the Sessions Judge has power to add or alter to the charge framed by a Magistrate while committing the accused to the court of sessions. But he has no power whatsoever to alter the charge in such a manner so as to quash the charge framed against the accused. In the instant case he urged that even though all the accused were charged under sec. 395 I.P.C. the learned Sessions Judge did not frame this charge against them at all and merely charged accused No. 1 under sec. 326 I.P.C; and accused Nos. 2 3 4 and 5 under sec. 323 I.P.C. and did not frame any charge against the rest of the accused which is clearly erroneous.

(3.) I entirely agree with the submissions made by the learned Assistant Government Pleader. In the case of State of Gujarat v. Mahmad Kasam and another referred to earlier the Division Bench of this High Court made the following observations :-