STATE OF BIHAR Vs. MD SHAHABUDDIN, SON OF SHAIKH HASIBULLAH; RAJ KUMAR SAH, SON OF TRILOKI SAH; MUNNA MIAN @ SONU @ ARIF HUSSAIN; SHAIKH ASLAM, SON OF SHAIKH SALIQ

JUDGEMENT

(1.) In this second round of litigation before this Court at the stage of Section 216 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.), the petitioner-the State of Bihar through the District Magistrate, Siwan, has filed the present Cr. Revision application under Sections 397 and 401 Cr.P.C. assailing the validity and correctness of the order dated 15.3.2013 passed by the learned Additional Sessions Judge-1st -cum Special Judge, Siwan Jail Court, Siwan in Sessions Trial No. 158 of 2010, whereby, the petition dated 9.8.2012 filed on behalf of the prosecution under Section 216 Cr.P.C. for amending the charge and for adding the charges against the accused-opposite parties under Sections 302,201 read with Section 120B of the Indian Penal Code has been rejected.

(2.) Mr. Devendra Kumar Sinha, learned Additional Advocate General No.2 and Mr. Shyameshwar Dayal, learned Additional Public Prosecutor, appearing on behalf of the petitioner-the State of Bihar, have strenuously argued the matter and have submitted that the impugned order dated 15.3.2013 passed by the learned trial court is contrary to the scheme and scope of Section 216 Cr.P.C. According to them, the learned trial court has erred in rejecting the petition filed on behalf of the prosecution for addition of the charges under Sections 302,201 and 120B of the Indian Penal Code, particularly in view of the evidence of P.W.1, Kalawati Devi, P.W. 4 Chandkeshwar Prasad, P.W. 5 Nitish Raj and P.W. 6 Rajiv Roshan. They have contended that the impugned order passed by the learned trial court is not in consonance with the earlier order dated 18.12.2012 passed by this Court in Cr. Revision No. 1030 of 2012 ( Annexure-6), therefore, the impugned order is not sustainable in law. They have further submitted that in view of the materials available on record, the charges framed against the accused-opposite party Nos. 1 to 4 are fit to be amended in exercise of powers under Section 216 Cr.P.C and they are liable to be further charged for the offences under Sections 302,201 and 120B of the Indian Penal Code. It would be relevant to mention here that a voluminous written submissions on behalf of the petitioner annexing copies of large number of judgments of the Hon'ble Apex Court and some other High Courts was also filed, after service of its copy on the learned counsel appearing on behalf of the opposite parties.

(3.) Per contra, Mr. Rana Pratap Singh, learned Senior counsel appearing on behalf of the Opposite Party No.1, Mr. Yogesh Chandra Verma, learned senior counsel appearing on behalf of the Opposite Party No. 4, Mr. Shoeb Alam, learned counsel appearing on behalf of the opposite party No.3 and several other counsels appearing on behalf of the opposite parties have vehemently opposed the prayer made on behalf of the petitioner in the present application. All of them, in one voice, have supported the impugned order dated 15.3.2013 passed by the learned trial court in the aforesaid Sessions Trial No. 158 of 2010 and have contended that in the given factual matrix of the instant criminal trial, there is no justification for amending the charge at this belated stage. They have also placed strong reliance on the various paragraphs of the earlier order dated 18.12.2012 (Annexure-6) passed by this Court, whereby the matter was remitted back to the learned trial court for passing a fresh order in the light of observations and directions made therein. It was also pointed out on behalf of the accused-opposite parties that admittedly, the corpus delecti of the two abducted persons have not been recovered and, therefore, the learned trial court has rightly refused to amend the charge by adding sections 302,201 and 120B of the Indian Penal Code. It would be relevant to mention here that on behalf of the accused-opposite party Nos. 1,2 and 3 also, a voluminous written submissions accompanied by copies of some of the judgments of the Hon'ble Apex Court as also some other High Courts was filed in order to buttress the points raised on their behalf in the present proceeding.