P L D 1964 (W (PLP)

Rex v. Alimuddin and others A I R 1950 All. 77 rel S. Ghazanfar Ali Shah A. A. G. for the State. Respondent in person. Date of hearing: 5th June 1964. By order of the 11th of July 1963, Mr. Abdul Karim Khan, Magistrate 1st Class, Bannu committed one Sher Muhammad alias Gidar to the Court of Sessions to stand his trial for an offence under section 307, P. P. Code. When the case came up for trial before the learned Additional Sessions Judge, Bannu on 31st of March 1964, he felt that in view of the evidence on the record, there existed a prima facie case under section 302, P. P. Code against Sher Muhammad instead of framing a charge under section 302, P. P. Code against Sher Muhammad the learned Additional Sessions Judge made a reference to this Court that the order of commitment be quashed and the committing Magistrate directed to commit Sher Muhammad under section 302, P. P. Code to the Court of Sessions. Notice was issued to the parties and also to A. A. G. for a very early date. Sher Muhammad appeared before me in person today and being un-represented, he had nothing to urge. The learned A. A. G. submitted that in view of the provisions of section 226 of the Code of Criminal Procedure, the learned Additional Sessions Judge was himself competent to frame a charge under section 302, P. P. Code against Sher Muhammad and proceed with the trial. He also referred to a ruling of the Madras High Court in case In re: Subbaratnam and others (A I R 1949 Mad, 663) wherein it has been laid down that, "A trial Judge at Sessions is not bound by the charges framed by the committing Court and he has ample power to revise and alter them not only at the commencement of the trial under section 226, Criminal P. C., but under section 227, Criminal P. C. at any stage of the trial before the verdict of the jury is returned or the opinions of the assessors are recorded."

2. The learned Additional Advocate‑General also referred to a ruling reported as The State v. Baijnath and others (A I R 1953 All 191). The aforesaid ruling though instructive is not strictly relevant. The learned Additional Sessions Judge was not bound by the charge framed by the committing Magistrate against Sher Muhammad. The only condition precedent for taking cognizance of a case is laid under section 193 (1) Criminal Procedure Code, which runs: "193 (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf."

3. I think the Allahabad case reported as Rex v. Alimuddin and others (A I R 1950 All. 77) is more in point. According to this authority, a Court of Sessions is competent to substitute a new charge, but under no circumstances a charge framed for an offence by the committing Court can be withdrawn. But in the case before me, the charge which is sought to be framed is a greater offence which includes the charge of the lesser offence framed against Sher Muhammad by the committing Magistrate and as such the ruling report as Muhammad Nawaz and others v. The State (P L D 1963 Lah. 332) will not be applicable. A similar question arose in a case before the Calcutta High Court. In that case Hassenullah Sheikh was charged on two separate counts with having committed murder of two persons, Moulvi Mahjazal Haq and Raimulla. The other three accused were charged on two separate counts with having, in furtherance of the common intention of all, committed murder of these two persons, offences punishable under section 302 read with section 34 of the Indian Penal Code. Rezatullah was further charged with having voluntarily caused hurt to Kaimulla with a cutting instrument.

4. It was contended in that case on behalf of the appellants that the trial was illegal because the accused were committed for trial on the counts of the charge relating to the murder of Moulvi Mahjazal Haq on the hurt caused to Kaimulla by Rezatulla and that the Sessions Judge added the counts relating to the murder of Kaimulla. Newbould and C. C. Ghose, JJ. who decided the case reported as Hassanulla Sheikh v. Emperor (A I R 1924 Cal. 625) overruled the conten tion raised on behalf of the appellants regarding the illegality of the trial. Their Lordships held that, "Under proper circumstances a Sessions Judge can add charges distinct from the charges raised by the committing Magistrate. Thus where some accused were charged with murder of one person and hurt to another person the Sessions Judge can add a charge of murder of the latter person also." In Emperor v. Bhagwandas Tulsidas (No. 1) and others (A I R 1946 Bom, 183) a question had arisen whether the charge framed by the committing Magistrate against the accused 1 and 4 (in that case) had referred only to the abetment of each other, and not to the abetment of accused 2, and that the addition of an altogether new charge was beyond the powers of the Clerk of the Crown. Lokur, J. held, "that the Clerk of the Crown has power under section 226 not only to alter a charge but also to add one more count of charge on which he finding on evidence that the accused ought to be tried, even though it may be distinct from the charge framed by the committing Magistrate." In the aforesaid case accused A and B were committed to the High Court on a charge under sections 323 and 109 of the Penal Code, for voluntarily causing hurt to one C and aiding and abetting each other in doing so, the Clerk of the Crown under section 226 Criminal Procedure Code was held to be competent to alter the charge to one under sections 302 and 109, Penal Code, for aiding and abetting third accused.

5. I am, therefore, clear in my mind that the learned Additional Sessions Judge was in error in considering that the commitment of Sher Muhammad to Court of Sessions on charge under section 307, P. P. Code precluded him from framing a charge against him under section 302, P. P. C. before proceeding with the trial. Since the victim of the attack of Sher Muhammad had died in consequence of the injuries caused to .him by means of a firearm, the learned Sessions Judge had ample powers to frame a charge under section 302, P. P. C. against Sher Muhammad. As I understand the law it is not necessary that the commitment of Sher Muhammad on a charge under section 307, P. P. C. should be quashed by this Court and the learned Committing Magistrate be directed to commit Sher Muhammad afresh to the Court of the Sessions on a charge under section 302, P. P. Code. It is open to the learned Additional Sessions Judge to frame a charge under section 302, P. P. Code against Sher Muhammad and proceed with the trial. Accordingly the reference is rejected and the learned Additional Sessions Judge is directed to proceed with the case in accordance with law. S. Q. Reference rejected.