1. Accused No. 2 is committed to this Court on a charge under Section 302 of the Indian Penal Code for the murder of one Dharamsey, and accused Nos. 1 and 4 on a charge under Sections 323 and 109 of the Indian Penal Code for voluntarily causing hurt to the said Dharamsey and aiding and abetting each other in doing so. In this Court the learned Clerk of the Crown altered the latter charge, and charged accused Nos. 1 and 4 under Sections 302 and 109 of the Indian Penal Code for aiding and abetting accused No. 2 in the murder of the said Dharamsey. Mr. Haji, the learned Counsel for accused Nos. 1 and 2, objects to this alteration as being outside the scope of Section 226 of the Criminal Procedure Code. That section provides:
When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the Crown, may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges.
2. Mr. Haji contends that the charge framed by the committing Magistrate against accused Nos. 1 and 4 had referred only to the abetment of each other, and not to the abetment of accused No. 2, and that the addition of an altogether new charge is beyond the powers of the Clerk of the Crown. My attention was called to the ruling in Queen Empress v. Appa Subhana Mendre I.L.R (1884) Bom. 200. In that case one Appa was tried for the murder of one Ragdu, or in the alternative for the abetment of Ragdu's murder by Raghu. Raghu was tendered pardon and examined as a witness. In the course of the trial, on the application of counsel for the prosecution before the verdict was recorded, a charge was added of abetment of Ragdu's murder by some person or persons unknown and such an addition of a new charge to the original charge was held to be wrong. But that addition was made under Section 227 of the Code, and as pointed out in Hassenullah Sheikh v. Emperor : AIR1924Cal625 even under that section, that ruling has been rendered obsolete by the definition of 'charge' in Section 4(1)(c), which was inserted for the first time in the Code of Criminal Procedure, 1898. Even in Appa Subhana's case Sargent C.J. observed (p. 209):
It was urged that Section 226, taking 'charge' in its specific sense, would only give this power when the prisoner was committed without a charge at all. But it is to be remembered that the words 'at all', which are found in the above sections in both of the Acts of 1872 and 1875, are omitted in Section 226 of this Act; and the words 'without a charge' in Section 226 of the Act of 1882 will properly apply, not only to the case in which there is 'no charge at all,' but also to the case in which there is 'no charge' in respect of such offence as the Sessions Judge or Clerk of the Crown may think the prisoner ought to be tried for.
3. This shows 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 finds on evidence that the accused ought to be tried, even though it may be distinct from the charge framed by the committing Magistrate.
4. Mr. Haji referred me to the ruling of Chagla J. in Emperor v. Husseinalli  Bom. 534: 44 Bom. L.R. 433. In that case the Clerk of the Crown had dropped one of the charges framed by the committing Magistrate, on the ground that it was not sustainable on the evidence. This was certainly beyond the competence of the Clerk of the Crown, as the proper course in such a case was for the Court to make an entry under Section 273(1) of the Criminal Procedure Code that the charge was clearly unsustainable. Chagla J. observed (p. 540):
I wish to make it clear that Section 226 gives the widest possible powers to the Clerk of the Crown to revise and re-draft charges with reference to any offence in respect of which the committing Magistrate has framed a charge. But when the Magistrate comes to the conclusion that an offence has been committed and frames a charge accordingly, it is not open to the Clerk of the Crown to withdraw that charge on the ground that there is no evidence to go to the jury and therefore the charge would fail. That is a judicial act which can only be performed by the Court.
5. Thus this ruling does not support Mr. Haji's contention. In Hassenullah Sheikh v. Emperor the accused were committed for trial for the murder of one Moulavi Mahjazal Huq and for hurt caused to one Kaimulla by one of the accused. The Sessions Judge added a charge for the murder of Kaimulla, and it was held that he had power to do so. It is on all fours with the present case, and I hold that the alteration in the charge made by the Clerk of the Crown is within the powers conferred upon him by Section 226 of the Criminal Procedure Code.