P CHINAYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD Mr. Sarangi, learned Counsel for the petitioner and Mr. Das, learned Counsel for the State.

(2.) THE petitioner happens to be a witness in C.T. Case No. 42 of 2005 pending before the learned Addl. Sessions Judge, Malkangiri. On 10.4.2007, he was examined as P.W.5 on behalf of the prosecution. From the certified copy of the evidence produced by the learned Counsel for the petitioner, it appears that as the P.P. was absent, the learned Court below put questions to the petitioner under Section 165 of the Evidence Act. While recording the answers given by the petitioner who was being examined as P.W.5, finding that he did not support the case of the prosecution, the learned Court below, in the said deposition recorded as follows: Since it appears from the record that this P. Chineya is indulging in falsehood and avoiding material facts, his involvement in the offence is suspected and this may be taken up by the learned P.P. under Section 216, Cr.P.C, if required adding the name of this person as an accused.

(3.) FOR appreciation of the contentions raised by the learned Counsel for the petitioner. Section 216 of the Code of Criminal Procedure is quoted herein below: 216. Court may alter charge (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.