MOHAN LAL Vs. EMPEROR THROUGH ISMAIL KHAN

JUDGEMENT

(1.) THIS is an application under Section 215 of the Criminal P. C. for quashing the commitment of the accused on a charge of attempting to commit murder. The accused was originally tried under Section 324 of the Indian Penal Code and the Trying Magistrate recorded his plea and proceeded to hear the evidence for the defence. The charge aforesaid was framed on the 16 of November 1923. The evidence for the defence was concluded on the 12 of December 1923. On the 15 of December 1923 the Trying Magistrate altered the charge into one under Section 307 of the Indian Penal Code and without giving the accused an opportunity to re-examine the witnesses for the prosecution in regard to the altered charge or to produce such further defence evidence as he may have in his defence on that charge, committed him to the Court of Session for trial on the charge so altered. Section 231, Criminal Procedure Code, however, requires that when a charge is altered by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re-call, or re-summon and examine with reference to such alteration or addition any witness who may have been examined and also to call any such further witness whom the Court may think to be material. The alteration was made at a very late stage of the case and no commitment ought to have been made on the altered charge without giving the accused an opportunity of re-examining the witnesses for the prosecution and producing his defence in regard thereto. The procedure of the Magistrate is entirely illegal and is likely to prejudice the accused in his trial before the Court of Session. It is unnecessary to say whether the evidence adduced was prima facie sufficient to bear out the altered charge at this stage of the case. The commitment of the accused under Section 307 of the Indian Penal Code is set aside and the Committing Magistrate directed either to proceed with the charge under Section 324 of Indian Penal Code as it stood originally or if he alters the charge to give the accused an opportunity to which he is entitled under the law of re-calling and re- examining the witnesses for the prosecution and producing such evidence in defence as he may like to produce in relation thereto. The accused will meanwhile be released on bail on a personal cognizance of Rs. 1,000 and one surety for Rs. 1,000.