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Kalicharan v. State Of U.P. - APPLICATION U/s 482 No. 14110 of 2005  RD-AH 5289 (8 November 2005)
Court No. 54
Criminal Misc. Application No. 14110 of 2005
Kalicharan Vs. State of Uttar Pradesh.
Hon. Mrs. Poonam Srivastava, J.
Heard Sri Dileep Kumar, learned counsel for the applicant and learned A.G.A for the State.
This application has been filed challenging the order dated 28.6. 2005, Annexure-8 to the affidavit, passed by Additional Sessions Judge, Court No. 6, Aligarh in Sessions Trial No. 589 of 2005, State Vs. Kalicharan and others, under Section 302 I.P.C. Police Station Akarabad, District Aligarh. By means of the impugned order charge has been framed against the applicant under Section 302/34 I.P.C. The argument on behalf of the applicant is that the occurrence had taken place on 31.10.2004 at 8.30 P.M. and the first information report was registered on the same day at 10.45 P.M. under Section 307/504 I.P.C. The charge sheet was submitted on 9.12. 2004 under Sections 307/504 I.P.C. After lapse of 45 days, the victim died on 17.12.2004. The post mortem was conducted and according to opinion of Doctor death occurred due to septicemia. A copy of the post mortem report has been annexed as Annexure-5 to the affidavit. Subsequently a supplementary charge sheet was filed converting the case from Section 307 I.P.C. to Section 304 I.P.C. A copy of the supplementary charge sheet has been annexed as Annexure-6. A perusal of the charge sheet shows that the Investigating Officer has stated that the previous charge sheet filed under Section under Sections 307/504 I.P.C. stands altered and charge sheet is being filed under Sections 304/504 I.P.C. The applicant was already granted bail by this Court on 23.2.2005 under section 304 I.P.C. in case crime No. 307 of 2004 Police Station Akarabad, District Aligarh. The learned Sessions Judge has framed charge under Section 302/34 I.P.C. vide order dated 28.6.2005 which is under challenge.
The main submission on behalf of the applicant is that since the cause of death as given in the post mortem report, is Septicemia and that too after 45 days of the occurrence. The learned Sessions Judge committed illegality in framing the charge under Section 302 I.P.C. and also that the applicant was not given any opportunity to seek discharge under Section 227 Cr.P.C., as such the statutory right of the applicant stands prejudiced.
I have heard learned counsel for the applicant and learned A.G.A. and gone through the entire record. The facts stated by Sri Dileep Kumar has not been disputed by the learned A.G.A. It is true that previously the charge sheet was filed under Section 307 I.P.C. but subsequently after the death of the victim, a second charge sheet came in existence under Section 304 I.P.C. and it is also true that the charge has been framed under Section 302 I.P.C. on the basis of case diary available before the Sessions Judge. However, there is no embargo placed on the court by law to alter the charge. It is always open for the learned Sessions Judge, if he feels on the basis of evidence that another offence is made out, other than for which the accused has been charge sheeted he is fully competent to frame charge. In the circumstances, I am not inclined to interfere and set aside the order dated 28.6.2005 framing charge under Section 302/34 I.P.C. However, it is directed that the trial may proceed under Section 302/34 I.P.C. but it will be open for the accused to approach the learned Sessions Judge for altering the charge after the statement of the doctor is recorded. It is correct that the applicant was never given an opportunity to seek discharge under Section 227 Cr.P.C. and avail his statutory right. Since straight away charge under Section 302 I.P.C. was framed, the learned Sessions Judge shall hear the applicant in the event, any application is moved for altering the charge after the statement of the doctor or any other witness is recorded and it will be open for the applicant to argue the question regarding amendment of the charge and the Sessions Judge shall pass appropriate orders in accordance with law.
The applicant was already granted bail by this Court on 23.2.2005 in Criminal Misc. Bail Application No. 3458 of 2005. A copy of the bail order is annexed as Annexure-7. In the event, the applicant furnishes fresh bail bonds and sureties in respect of the new offence under Section 302/34, the same shall be accepted by the learned Sessions Judge and the applicant shall not be sent to jail.
With these observations, this application is finally disposed of.
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