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Judgment
A. Ramamurthi, J.—Petitioner/second accused in C.C. No. 151/98 on the file of the Judicial Magistrate No. II, Poonamallee has preferred
the revision aggrieved against the order passed in C.M.P. No. 1083 of 1999, dated 5.5.1999.
The case in brief is as follows: The respondent preferred a private complaint against the petitioner and another person for alleged offences u/s
494 of the Indian Penal Code. The first accused had married her on 7.9.1997. His marriage with the complainant is subsisting. Learned Magistrate
had framed charges u/s 494, I.P.C., against both accused. The respondent filed a petition u/s 216, Cr.P.C. for alteration of charges to include
Section 109, I.P.C. against the second accused and also to include the date and place of marriage in the charge. The respondent was aware of the
above said commissions, but she was not a party in the said petition and her name had been omitted and no opportunity as also given to her.
Learned Magistrate allowed the petition and aggrieved against this, the present revision is filed.
Heard the learned Counsel for both sides. The respondent filed a complaint u/s 494, I.P.C. against both the accused and the same was taken on
file in C.C. No. 151 of 1998 pending on the file of the Judicial Magistrate II, Poonammallee. The evidences of P.Ws. 1 to 3 were recorded in
chief and their cross-examination was deferred. Subsequently the learned Magistrate had framed charges u/s 494, I.P.C. against both the accused.
Subsequently, the complainant filed a petition u/s 216 to alter the charge in respect of the second accused to include Section 109, I.P.C. and also
to include the date and place of the alleged second marriage. Learned Counsel for the second accused mainly contended that the charge u/s 494,
I.P.C. was already framed only on the available materials and there is absolutely no material to alter the section as Section 109, I.P.C. against the
second accused in the case.
Learned Counsel further stated that she was not made a party in the petition, but however the order passed by the Court indicated that the
petitioner is also a party in the said petition. I am of the view that there is no force in the contention of the learned Counsel for the revision
petitioner/second accused. It is manifestly clear from Section 216, Cr.P.C. that the Court may alter or modify the charge at any time before the
pronouncement of the judgment. Now, according to the complainant, the marriage between the complainant and the first accused was subsisting
and thereafter only the first accused has married the second accused. It is only under such circumstances, so far as A2 is concerned, a charge u/s
494, I.P.C. read with Section 109, I.P.C. is absolutely necessary. It is also the duty of the complainant to establish when the second marriage took
place only to fulfil the ingredient u/s 494, I.P.C. read with Section 109, I.P.C. these materials are necessary.
Learned Counsel for the complainant also relied upon a decision of this Court in Rajamal v. Mohanraj, 1999 Mad. LW (Cri.) 22 , wherein it is
observed that a charge against the alleged second wife u/s 494 held, is erroneous, as it should be against her as an abettor. This decision is
applicable to the case on hand. Learned Counsel for the revision petitioner relied on another decision reported in Harihar Chakravarty Vs. The
State of West Bengal, , for the proposition that a direction to alter the charge so as to include an offence for which the accused was not originally
charged can be given only if the Trial Court itself could take action u/s 227 and it could only do so if there were materials before it either in the
complaint or in the evidence to justify such action.
It is necessary to state that P.Ws. 1 to 3 were examined in chief and their cross-examination had differed. P.W. 1 had narrated the entire
incident relating to the second marriage of her husband with the second accused. Only for framing proper charge, it was altered by the Court in
view of Section 216, Cr.P.C. and hence I am of the view that no prejudice is caused to the revision petitioner. Moreover the witnesses were not
already cross-examined by any of the accused and now after framing of charges, the opportunity is also available to the revision petitioner to
cross-examine all the witnesses against. There is no illegality or infirmity in the order passed by the Court below calling for any interference.
For the reasons mentioned above, the revision fails and is dismissed. Consequently, Cr1.M.P. Nos. 4261 and 5716 of 1999 are also dismissed.