The Allahabad High Court allowed the application and set aside the impugned orders dated 29.09.2022 and 03.02.2023 by which the trial Court added the charge by exercising their power under Section 216 of Cr.P.C.
A single-judge bench of this Court comprising Hon’ble Justice Ajai Kumar Shrivastava reiterated that the power of the invocation of Section 216 of CrPC is exclusively confined to the Court as an enabling provision, and no party has any vested right to seek any addition or alteration of charge by moving an application for alteration.
Brief Facts:
The instant application under Section 482 of Cr.P.C. was filed by the accused/ applicants praying inter alia for the relief to quash the impugned order dated 29.09.2022 passed in Case No. 2032/2015 arising out of Crime No.-144/1998 U/s[1]498A/304B IPC & 3/4 D.P. Act and the order dated 03.02.2023 by which the revision petition of the petitioners was rejected in Criminal Revision No. 209/2022.
Contentions of the Applicant:
The learned Counsel for the Applicant submitted that the impugned order dated 29.09.2022, whereby the learned trial court has held that the case under Section 304B I.P.C. is also made out against the present applicants, has been passed by the learned trial court in the exercise of power vested in it by virtue of Section 216 of Cr.P.C., which is evident from the impugned order dated 29.09.2022 itself. He further submitted that the same has been passed on an application moved either by the accused or the complainant/ first informant.
The learned Counsel contended that the impugned order dated 29.09.2022, in respect of the addition of Section 304B I.P.C. against the present Applicant on the basis of an application moved by the first informant of this case, is not maintainable.
Contentions of the Respondent:
The learned A.G.A. for the State has vehemently opposed the prayer made by learned Counsel for the applicants. However, he has been unable to dispute the aforesaid factual submissions advanced by the learned Counsel for the applicants.
Observations of the Court:
After hearing to both the parties, it transpired to the Court that the impugned order dated 29.09.2022 was passed on an application moved by the first informant, Sushil Kumar Singh, under Section 216 Cr.P.C. Thereafter, the applicants preferred a criminal revision bearing No.209 of 2022 against the impugned order dated 29.09.2022, which was also rejected by the learned revisional Court.
To examine the scope of section 216 of Cr.P.C., this Court referred the case of P. Kartikalakshmi vs. Sri Ganesh and another reported in (2017) 3 SCC 347, in which the Hon’ble SC held that the power under section 216 of Cr.P.C is exclusive to the Court. There is no right in any party to seek for such addition or alteration by filing any application as a matter of right.
It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC, to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which come to its notice or brought to its notice.
In respect to the aforesaid settled legal position, the impugned orders dated 29.09.2022 and 03.02.2023 was quashed and set aside.
The decision of the Court:
The Allahabad High Court set aside the impugned orders dated 29.09.2022 and 03.02.2023, being an abuse of the process of law.
Case Title: Nanhey Bhaiya @ Nanhan Singh And 2 Others vs State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Coram: Hon’ble Justice Ajai Kumar Shrivastava
Case no.: APPLICATION U/S 482 No. - 2556 of 2023
Advocate for the Applicant: Sanjay Singh Chauhan,Alok Kumar Singh
Advocate for the Respondent: G. A.
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