ORDER : 1. Challenge in this petition is to the order dated 17.10.2022 passed by learned Sessions Judge, Mahasamund dismissing criminal revision preferred by petitioners herein against the order dated 30.6.2022 passed in Criminal Case No.2100/2014 by which learned Judicial Magistrate 1st Class, Mahasamund (for short 'the Magistrate') allowed application filed by respondent under Section 216 read with Section 323 of the Code of Criminal Procedure, 1973 (for short 'CrPC'). 2. Facts relevant for disposal of this petition are that on 2.6.2014 complainant Deman Sinha lodged report in Police Station Mahasamund based on which crime bearing No.39/2014 was registered against petitioners herein for commission of offence defined under Sections 323, 306, 382 & 34 of Indian Penal Code (for short 'IPC'). Police submitted final report under Sections 323, 306, 384, 147 of IPC. Based on material available in charge sheet and considering that offence is also registered under Section 306 of IPC, learned Magistrate committed the case under Section 209 of CrPC to the Sessions Court. Learned Sessions Judge taking into consideration facts and circumstances of case and submissions of learned counsel for respective parties, discharged petitioners herein from the offence under Sections 306 & 384 of IPC and sent back the case to the Magistrate for framing of charges under Sections 323 & 147 of IPC. During course of trial, prosecution filed an application under Section 216 read with Section 323 of CrPC for committal of case to the Sessions Court on the ground that there are sufficient material available against accused persons to prosecute them under Section 302 or 304 of IPC. Application was taken up for hearing on 4.3.2022 and the same was rejected by learned Chief Judicial Magistrate stating that Sessions Court vide order dated 10.9.2015 has discharged accused persons from the charges under Sections 306 & 384 of IPC; ordered for framing of charges under Sections 323 & 147 of IPC against them and none of the witnesses is examined on behalf of prosecution. After rejection of application under Section 216 CrPC and after examination of some witnesses before trial Court on behalf of prosecution, fresh application under Section 216 r/w Section 323 CrPC was filed by prosecution for committal of case to the Court of Session. After rejection of application under Section 216 CrPC and after examination of some witnesses before trial Court on behalf of prosecution, fresh application under Section 216 r/w Section 323 CrPC was filed by prosecution for committal of case to the Court of Session. Considering evidence of prosecution witnesses, learned Magistrate vide order dated 30.6.2022 allowed application filed under Section 216 r/w 323 CrPC recording that prima facie evidence appear to be of murder or culpable homicidal death and fixed the case for appearance of accused persons and committal under Section 323 CrPC. Aggrieved by order dated 30.6.2022, petitioners have preferred criminal revision before the Sessions Judge, Mahasamund and the same was dismissed vide order impugned. 3. Learned counsel for petitioners would submit that orders passed by the Courts below are contrary to the provisions of CrPC. Learned Magistrate exercising powers under Section 209 CrPC had committed case to the Court of Sessions observing that one of the offences registered against petitioners is exclusively triable by the Court of Sessions. Upon considering material available in record, the Sessions Court discharged petitioners from the charges under Sections 306 & 384 of IPC, remitted back the case to the Magistrate for framing of charges under Sections 323 & 147 of IPC. Once the Magistrate committed the case before the Court of Sessions under Section 209 of CrPC and received back that the offence under Sections 323 & 147 CrPC are triable by the Magistrate, further committal of case by Magistrate is not permissible under law as the same would amount to reviewing own order. As per decision of Hon'ble Supreme Court in case of Adalat Prasad vs. Ruplal Jindal, reported in (2004) 6 SCC 371, the Magistrate cannot review his own order. Reliance is also placed on decision of Hon'ble Supreme Court in cases of Shivjee Singh vs. Nagendra Tiwary & Ors., reported in (2010) 7 SCC 578 ; Dharam Pal & Ors. vs. State of Haryana & Anr., reported in (2014) 3 SCC 306 ; and Balveer Singh & Anr. Vs. State of Rajasthan & Anr., reported in (2016) 6 SCC 680 . 4. vs. State of Haryana & Anr., reported in (2014) 3 SCC 306 ; and Balveer Singh & Anr. Vs. State of Rajasthan & Anr., reported in (2016) 6 SCC 680 . 4. Per contra, learned counsel for respondent-State opposed submissions of learned counsel for petitioners and submitted that it is not the case of committal by the Magistrate but trial Court after considering evidence brought in record by prosecution and application under Section 216 r/w 323 of CrPC filed by prosecution, came to conclusion that charges levelled against petitioners require addition of charge under Section 302 or 304 of IPC. She contended that under Section 216 CrPC the Courts are having ample power to add or alter the charge at any time before judgment is pronounced. Steps taken for committal of case are under Section 323 CrPC and not under Section 209 of CrPC. There is no error of law in the orders passed by the Courts below. In support of her contention, she relied upon decision of Hon'ble Supreme Court in case of Anant Prakash Sinha alias Anant Sinha Vs. State of Haryana & Anr., reported in (2016) 6 SCC 105 . 5. I have heard learned counsel for both sides and perused the records of case. 6. It is not in dispute that based on report of complainant regarding death of Harishankar, crime is registered against petitioners. In FIR, there is specific allegation that in the meeting convened, accused persons (petitioners herein) had assaulted the deceased. In Merg Intimation, it is mentioned that deceased died due to drowning in Well. Police registered crime under Sections 323, 306 & 384 of IPC. In the post-mortem report, cause of death of deceased was opined to be 'cardio respiratory arrest due to injury to vital organ brain, head and lungs'. Police submitted final report under Sections 323, 306, 384 & 147 of IPC. Taking note of offence under Section 306 of IPC in charge sheet, the Magistrate exercising power under Section 209 of CrPC initially committed the case to the Court of Sessions. After committal, the Court of Sessions, based on material available in charge sheet and submissions made, found prima facie no offence made out under Sections 306 & 384 of IPC and sent back the case to the Magistrate for framing of charges under Sections 323 & 147 of IPC. After committal, the Court of Sessions, based on material available in charge sheet and submissions made, found prima facie no offence made out under Sections 306 & 384 of IPC and sent back the case to the Magistrate for framing of charges under Sections 323 & 147 of IPC. Subsequently, after examination of prosecution witnesses, prosecution realized that quality of evidence came on record prima facie attracts commission of offence under Section 302 or 304 of IPC against petitioners and therefore, an application under Section 216 read with Section 323 of CrPC is filed by prosecution for committal of case to the Court of Sessions. Trial Court taking note of evidence of PW-11 Dr. G.C. Chandrakar, who conducted post-mortem examination, allowed the application filed under Section 216 r/w 323 of CrPC, fixed the matter for hearing before committal of case under Section 323 of CrPC and ordered for personal appearance of all accused persons. 7. Section 216 of CrPC empowers the Court to alter or add any charge at any time before judgment is pronounced. Section 216 CrPC reads thus:- “216. Court may alter charge; (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 8. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 8. Section 323 of CrPC talks of procedure when after commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court. From reading of the provision it is ample clear that this power of committal can be exercised after commencement of trial. 9. As regards submission of learned counsel for petitioners that once an application filed under Section 216 CrPC is rejected, then the Court cannot review its own order. Perusal of order dated 4.3.2020 would show that earlier application under Section 216 CrPC was rejected on the ground that prosecution has not examined any witness and after committal of the case earlier, the Sessions Court has discharged accused persons from the charges under Sections 306 & 384 of IPC. After rejection of first application, about 11 witnesses have been examined before trial Court including PW-11 Dr. G.C. Chandrakar. On the date of consideration of second application under Section 216 r/w 323 CrPC, there was additional material and evidence before the Magistrate for arriving at conclusion that it prima facie attract offence of murder or culpable homicide not amounting to murder. 10. Submission of learned counsel for petitioners that once the Magistrate has committed case under Section 209 CrPC, committal of case again would amount to review of earlier order of committal, is misconceived. Application of provisions of Section 209 of CrPC and Section 323 of CrPC are at different stages of the proceedings/case. From the language of Section 209 of CrPC it is clear that Magistrate upon submission of police report or the accused appears or brought before him and it appears to the Magistrate that offence is triable exclusively by the Court of Sessions, he shall commit to it. From the language of Section 209 of CrPC it is clear that Magistrate upon submission of police report or the accused appears or brought before him and it appears to the Magistrate that offence is triable exclusively by the Court of Sessions, he shall commit to it. Stage for applying mind under Section 209 CrPC is based on material placed before him by police or otherwise. Whereas, stage of Section 323 CrPC comes after enquiry or trial, when the Magistrate upon evidence brought before him during inquiry or trial, finds that case ought to be tried by Court of Sessions, then exercising the powers under Section 323 CrPC, he shall commit the case to it. Meaning thereby, application of mind under Section 323 CrPC is based on material which comes before the Magistrate during trial. 11. Case laws relied upon by learned counsel for petitioners being on different sets of facts are of no help. In case of Dharam Pal (supra) issue for consideration was whether the Court of Sessions under Section 193 CrPC has power to take cognizance of an offence and summon other person whose complicity in commission of crime prima facie would be gathered from materials available on record. In case of Shivjee Singh (supra), point for consideration was whether under proviso to Section 202 (2) of CrPC examination of all witnesses cited in complaint is a condition precedent or not for taking cognizance and issuance of process against the person named as accused in the complaint. In case of Balveer Singh (supra), issue involved was regarding power of Sessions Court to take cognizance under Section 193 CrPC as a court of original jurisdiction. 12. In case of Anant Prakash Sinha (supra) Hon'ble Supreme Court has dealt with issue as to when court can alter or add to any charge in exercise of powers under Section 216 CrPC and observed thus:- “17. In Thakur Shah v. King Emperor (supra), what the Court has held is that alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. In Thakur Shah v. King Emperor (supra), what the Court has held is that alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. We may hasten to clarify that there has been a reference to the decision rendered in Harihar Chakravarty, but the said reference has to be understood in the context. Section 216 CrPC, as is evincible, does not lay down that the court cannot alter the charge solely because it has framed the charge. In Hasanbhai Valibhai Qureshi, it has been stated there is scope for alteration of the charge during trial on the basis of material brought on record. In Jasvinder Saini, it has been held that circumstances in which addition or alteration of charge can be made have been stipulated in Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the procedure to be followed once the court decides to alter or add any charge. It has been laid down therein that the question of any such addition or alteration generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. If the said decision is appositely understood, it clear lays down the principle which is in consonance with Harihar Chakravarty. 18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.” 13. In case at hand, the Magistrate allowed application under Section 216 CrPC for altering or adding charge based on evidence came in record during course of trial, after elaborating the same in its order. Learned Sessions Court while considering grounds of rejection of earlier application under Section 216 CrPC in Paragraph-16 of the order impugned for allowing subsequent application, dismissed criminal revision and affirmed the order dated 30.6.2022 passed by the Magistrate. 14. From the aforementioned facts and circumstances of case and discussions of learned Court below with respect to evidence brought in record by prosecution while allowing application under Section 216 of CrPC and further fixing case for committal under Section 323 CrPC, I do not find any illegality or infirmity in the order impugned dismissing revision and affirming order of Judicial Magistrate 1st Class dated 30.6.2022. 15. For the foregoing, there is no merit in this petition, the same is liable to be and is hereby dismissed. No order as to costs.