Case Note & Summary
The applicant, Babubhai @ Irfan, was facing trial before the 3rd Judicial Magistrate First Class, Bhandara, in Regular Criminal Case No. 165 of 2006 for offences punishable under Sections 324 and 506 read with Section 34 of the Indian Penal Code. The charge was framed on 31/08/2007. During the trial, after some witnesses were examined, the prosecution filed an application (Exhibit 48) to add a charge under Section 325 IPC based on the evidence of the medical witness (PW-2 Dr. Nitin Devendra Turaskar), who deposed about injuries to the victim Giridhar Turaskar, including an injury to the scrotum requiring operation. The Magistrate allowed the application and added the charge under Section 325 IPC. The applicant challenged this order by filing Criminal Application No. 1463/2010 before the Bombay High Court, Nagpur Bench. The High Court heard the counsel for the applicant and the Additional Public Prosecutor. The court observed that the Magistrate had not properly applied his mind to the evidence and had mechanically allowed the application. The court noted that the Magistrate did not consider whether the injury was grievous within the meaning of Section 320 IPC and whether the evidence justified the addition of the charge. The High Court held that the Magistrate exceeded his jurisdiction by adding the charge without proper application of mind and without considering the need to commit the case if the offence was not triable by him. The court quashed the orders dated 21/08/2010 and 24/08/2010 passed by the Magistrate and directed the trial to proceed on the original charges.
Headnote
A) Criminal Procedure Code - Alteration of Charge - Section 216 CrPC - Power to alter charge - The Magistrate has power to alter or add any charge at any time before judgment, but such power must be exercised judiciously based on material on record and not on mere suspicion or application by prosecution without proper application of mind (Paras 5-7). B) Indian Penal Code - Grievous Hurt - Section 325 IPC - Addition of charge - The Magistrate added charge under Section 325 IPC based on medical evidence suggesting injury to scrotum requiring operation, but the court held that the Magistrate did not properly apply his mind to the evidence and the application was allowed mechanically (Paras 5-7). C) Criminal Procedure Code - Committal Proceedings - Section 323 CrPC - Jurisdiction - If the Magistrate finds that the offence is not triable by him, he must commit the case to the Court of Session; here, the Magistrate retained the case and added charge, which was improper (Para 7).
Issue of Consideration
Whether the trial Magistrate was justified in adding a charge under Section 325 of the Indian Penal Code after the prosecution had examined some witnesses, based on the evidence of the medical witness.
Final Decision
The High Court allowed the application and quashed the orders dated 21/08/2010 and 24/08/2010 passed by the 3rd Judicial Magistrate First Class, Bhandara, and directed the trial to proceed on the original charges under Sections 324 and 506 read with Section 34 IPC.
Law Points
- Charge can be altered or added at any time before judgment under Section 216 CrPC
- but must be based on material on record and not on mere suspicion
- Magistrate cannot add a charge that is not triable by him without committing the case to higher court
- Section 325 IPC is triable by Magistrate of First Class but requires careful consideration of evidence.
