Allahabad High Court
Buggi @ Avinash Dubey vs State Of U.P And 3 Others on 22 November, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- APPLICATION U/S 482 No. - 14468 of 2022
Applicant :- Buggi @ Avinash Dubey
Opposite Party :- State Of U.P And 3 Others
Counsel for Applicant :- Bishram Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application U/s 482 Cr.P.C. has been filed to set aside the order dated 19.08.2021 and 9.04.2022 passed by Special Judge POCSO Act in Special Trial No.11 of 2014 (State vs. Prabhakar and ors) arising out of case crime no.1521 of 2013 U/s 363, 366, 376 IPC and 6 POCSO Act, P.S. Rampur Karkhana, District Deoria.
Learned counsel for the applicant contended that the trial court has framed charge on 09.10.2014, U/s 363, 366, 376, 342, 323/34 IPC and 3/4 POCSO Act. The learned trial court vide order dated 17.08.2021 recalled it and on 19.08.2021 again framed fresh charges under sections 363, 366, 376 Gha, 323/34 IPC and section 6 of POCSO Act. The trial is pending since 2014 and the trial court has recalled the charge and re-framed it. The trial court cannot do so, it is also causing delay in the conclusion of the trial. It is further contended that applicant-accused has also moved an application before the trial court alleging therein that the trial is not proceeding as per procedure. Amendment of charge from time to time is causing delay in the trial. When charge is amended, evidence is to be again produced causing further delay in the trial for which prosecution is absolutely responsible. No delay has been caused by the defence. In the application, it was prayed that trial court should proceed lawfully and provide opportunity of cross-examination of the witnesses.
Leaned AGA opposed the prayer.
Section 216 Cr.P.C. deals with alteration and addition of charge. It provides as follows:
"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."
So, under section 216 Cr.P.C, the trial court has ample power to alter or add charge at any time before the pronouncement of judgment. If there is any defect in the charge or any section has been omitted, the trial court can rectify the mistake at any stage and re-frame the charge. If a charge is altered or amended, both the parties i.e. prosecution as well as the accused will have an opportunity of producing evidence and cross-examination of the witnesses. So there is no illegality in the impugned order, no direction is required in the matter.
With the aforesaid observation, this application U/s 482 Cr.P.C. is disposed off.
Order Date :- 22.11.2022
C. MANI
