Judgment :- Oral Judgment: 1. Rule. Rule returnable forthwith. By consent of parties taken up for hearing. 2. The applicant is facing trial being Sessions Trial No. 106/2008 before the learned Principal Sessions Judge, Akola, under Section 306 of the Indian Penal Code. On 14/09/2009 statement of the applicant under Section 313 of Cr. P.C. was recorded, written arguments were tendered by the petitioner and the Sessions Case No. 106/2008 was adjourned to 16th September, 2009 for arguments. On 16/9/2009, the learned Principal Sessions Judge, vide exhibit 14 framed additional charge under Section 498 of the Indian Penal Code against the applicant. The applicant rendered his plea. The applicant declined to plead guilty. The learned prosecutor tendered pursis stating that the prosecution does not wish to lead additional evidence. The applicant vide exh.55 applied for a chance to cross examine the witnesses on behalf of prosecution on account of framing of charge under Section 498 of the Indian Penal Code. That application was rejected by the learned Principal Sessions Judge on the same day i.e. by order dated 16/9/2009. The applicant immediately filed application for an adjournment requesting that the matter be adjourned for 15 days as the applicant wanted to challenge the order dated 16/9/2009. That application was also rejected on 16th September itself and the case was posted for argument on 3rd October, 2009. In the aforesaid circumstances, the applicant has approached this Court with prayer that the additional charge framed on 16/9/2009 under Section 498 of the Indian Penal Code should be quashed and set aside and alternatively the applicant should be permitted to recall the witnesses for facing cross examination to be done in regard to charge under Section 498 of the Indian Penal Code. 3. The applicant has in para 3 of this application made a positive statement as under:- “when the case was fixed for argument on 16/9/2009, learned Sessions Judge allowed, in absence of any application by State, added charge under Section 498 of IPC” 4. Learned Advocate appearing for the applicant contended that if at all learned Principal Sessions Judge wanted to frame an additional charge under a particular section he could have done it if an application in that regard was filed and of-course after hearing the learned Prosecutor as well as the applicant. Learned Advocate appearing for the applicant contended that if at all learned Principal Sessions Judge wanted to frame an additional charge under a particular section he could have done it if an application in that regard was filed and of-course after hearing the learned Prosecutor as well as the applicant. He further submitted that if learned Principal Sessions Judge wanted to frame additional charge suo-moto he should have at least heard the learned prosecutor and the applicant and then pass order as regards framing of additional charge. The learned advocate submitted that in the present case, the learned Principal Sessions Judge has not heard the applicant on the question of framing of additional charge and therefore, order dated 16/9/2009 framing charge under Section 498 of the Indian Penal Code is illegal and therefore, the same should be set aside. 5. He alternatively submitted that the applicant alteast ought to have been permitted to cross examine the witnesses on behalf of prosecution because when the witnesses on behalf of prosecution were examined earlier, the applicant was not facing charge under Section 498 of the Indian Penal Code. Learned Advocate Mr. Mardikar submitted that principles of natural justice have been violated. 6. He submitted that entire exercise carried out by the learned Principal Sessions Judge, on 16/9/2009 clearly goes to show that it was illegal exercise and the same is required to be looked into from that angle. 7. Mr. Kale, learned APP for the state has supported the order by contending that the record was apparent and no prejudice is caused to the applicant by framing additional charge and the applicant could defend the same by advancing appropriate submission. He also submitted that thrust of charge under Section 306 of the Indian Penal Code was on the footing that the applicant had committed offence punishable under Section 498 of the Indian Penal Code and therefore, it became necessary for the Court to frame the charge under Section 498 of the Indian Penal Code and that has been done in order to do complete justice in the matter. He prayed for dismissal of criminal application. 8. After having considered rival contentions, I am inclined to accept the argument advanced by Mr. Mardikar, learned Advocate for the applicant. Mr. Mardikar had made available to the Court certified copy of the Roznama in regard to what transpired in the Court on 7/9/2009, 10/9/2009, 14/9/2009. He prayed for dismissal of criminal application. 8. After having considered rival contentions, I am inclined to accept the argument advanced by Mr. Mardikar, learned Advocate for the applicant. Mr. Mardikar had made available to the Court certified copy of the Roznama in regard to what transpired in the Court on 7/9/2009, 10/9/2009, 14/9/2009. It is noticed that till 14/9/2009 neither the prosecution nor Principal Sessions Judge thought in terms of framing the charge under Section 498 of the Indian Penal Code. The statement of the accused was recorded under Section 313 of Cr. P.C. on 14/9/2009 and the trial was posted for argument on 16/9/2009. 9. Perusal of Roznama dated 16/9/2009 goes to show that without any formal application from the learned Prosecutor for framing of additional charge under Section 498, the learned Principal Sessions Judge thought it fit to frame such a charge. In the normal course, such a request for framing of additional charge could have been made by the learned Prosecutor by tendering application. If such application would have been filed, I am sure the applicant would have got an opportunity to reply that application, then learned Principal Sessions Judge could have passed order on that and then further steps could have been taken. In the present case, learned Prosecutor has not filed any such application. On the basis of Roznama dated 16/9/2009, it is apparent that the learned Principal Sessions Judge took upon himself the task of framing the additional charge under Section 498 of the Indian Penal Code. In the face of statement of paragraph 3 that the applicant was not heard on the question of framing additional charge, as also in the face of text of roznama dated 16/9/2009, it is apparent that the learned Principal Sessions Judge did frame the charge without hearing the learned Prosecutor as well as the applicant. Assuming for a moment, if learned Principal Sessions Judge was of the view that additional charge under Section 498 is required to be framed what was expected from him, was to hear learned Prosecutor as well as the applicant and then pass appropriate order. In the absence of giving appropriate opportunity to the applicant, the very exercise carried out by the learned Principal Sessions Judge in framing additional charge under Section 498, is illegal and is required to be set aside. 10. In the absence of giving appropriate opportunity to the applicant, the very exercise carried out by the learned Principal Sessions Judge in framing additional charge under Section 498, is illegal and is required to be set aside. 10. Even if it is accepted for a moment that the learned Principal Sessions Judge was right in framing additional charge under Section 498 of the Indian Penal Code on his own and without providing hearing to the applicant, the learned Principal Sessions Judge should have allowed the applicant to cross examine such of the witnesses as may be desired by the applicant. The learned Principal Sessions Judge while passing order dated 16/9/2009 declined to do that. To that extent the order dated 16/9/2009 passed below exh.55 will have to be termed as illegal. 11. After the learned Principal Sessions Judge rejected the application below exh.55, the application was moved by the applicant so as to seek adjournment so that he could challenge the exercise done the learned Principal Sessions Judge as regards framing of additional charge and as regards rejection of application below exh. 55. On that application the learned Principal Sessions Judge passed detailed order on 16/9/2009. He expressed disinclination to grant time and posted the matter for argument on 3/10/2009. In my view, if the applicant expressed a desire to challenge a particular order passed by the Court, in the normal course, learned Principal Sessions Judge could have granted reasonable time of atleast a week or 10 days so that the applicant could challenge the said order. It is difficult to understand as to why the learned Principal Sessions Judge exhibited some urgency in the matter. In my view, order dated 16/9/2009 rejecting the application for adjournment should not have been passed. 12. In the result, framing of additional charge under Section 498 of the Indian Penal Code, which was done on 16/9/2009 will have to be termed as illegal. It will have to be set aside. Similarly, the order passed by the learned Principal Sessions Judge, on 16/9/2009 below exh.55 and order dated 16/9/2009 rejected the application for adjournment, are also required to be quashed and set aside. 13. In view of aforesaid discussion, the question now is what learned Principal Sessions Judge should do in regard to the framing of additional charge under Section 498. Similarly, the order passed by the learned Principal Sessions Judge, on 16/9/2009 below exh.55 and order dated 16/9/2009 rejected the application for adjournment, are also required to be quashed and set aside. 13. In view of aforesaid discussion, the question now is what learned Principal Sessions Judge should do in regard to the framing of additional charge under Section 498. As of today, the learned Prosecutor has not exhibited any desire to file application for framing additional charge under Section 498 of the Indian Penal Code. 14. In view of above development, if at all learned Prosecutor wants that additional charge should be framed under Section 498, he will have to file an application within a period of one week from the receipt of authenticated copy of this order. If the learned Prosecutor files such an application same will have to be decided on merits by giving chance to applicant to oppose it. If the learned Prosecutor does not file application and if learned Principal Sessions Judge is of the view that the record discloses the need to frame additional charge under Section 498 of the Indian Penal Code, he will have to hear the learned Prosecutor as well as the applicant and then pass the speaking order. Needless to mention that if the order is passed against the applicant, the learned Principal Sessions Judge shall allow reasonable chance to the applicant to approach the Higher Court and for that he will have to adjourn the matter for some time. 15. Keeping in view the aforesaid discussion, the following order is passed to dispose of this application. (i) Framing of additional charge under Section 498 of the Indian Penal Code done by the learned Principal Sessions Judge, Akola, on 16/9/2009 is set aside. (ii) Order dated 16/9/2009 passed below exh.55 is set aside. (iii) Order dated 16/9/2009 passed below application for seeking adjournment for approaching to the Superior Court, is also set aside. (iv) The learned Advocate for the applicant shall produce an authenticated copy of this order duly authenticated by Court Sheristedar before the learned Principal Sessions Judge, Akola on 3/10/2009. The applicant shall also supply the copy of this order to the learned Prosecutor on 3/10/2009. (iv) The learned Advocate for the applicant shall produce an authenticated copy of this order duly authenticated by Court Sheristedar before the learned Principal Sessions Judge, Akola on 3/10/2009. The applicant shall also supply the copy of this order to the learned Prosecutor on 3/10/2009. Upon receipt of the copy by the learned Principal Sessions Judge, he shall allow the learned Prosecutor to file an application for framing of additional charge under Section 498 of the Indian Penal Code, if at all learned Prosecutor wants to do so. Such application should be filed within 7 days from 3/10/2009. If such an application is filed a copy of the same shall be provided to the applicant so as to give chance to the applicant to oppose it and the learned Principal Sessions Judge, shall hear the learned Prosecutor as well as the applicant and then pass the speaking order. If no such application is filed by the learned Prosecutor and if the Principal Sessions Judge is of the view that additional charge is required to be framed under Section 498 of the Indian Penal Code, he shall hear the learned Prosecutor and the applicant and then pass speaking order. If an order of framing of additional charge is passed against the applicant, learned Principal Sessions Judge shall give reasonable time to the applicant for approaching the Superior Court and that he will adjourn the trial for a reasonable period. 16. It is clarified that this Court has not expressed any views on the merits of this case i.e. on the question as to whether framing of additional charge was required or not.