Allahabad High Court
Angad And 2 Others vs State Of U.P. And Another on 19 January, 2023
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 64
Case :- APPLICATION U/S 482 No. - 38499 of 2022
Applicant :- Angad And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sachchidanand Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Sachchidanand Srivastava, learned counsel for the applicants and Shri Ankit Srivastava, learned AGA for the State.
2. Challenge has been raised to the order dated 10.10.2022 passed by Additional District and Sessions Judge/F.T.C. First Siddharth Nagar, in S.T. No. 37 of 2018, arising out of Case Crime No. 2215 of 2017, under Section 366, 376, 506, 120-B I.P.C., Police Station - Chilhia, District - Siddarth Nagar. Presently, learned court below has passed an order referable to Sections 216 Cr.P.C. altering the charge framed against the applicants and thereby introducing offence under Section 376D I.P.C.
3. Submission is, the power under Section 216 Cr.P.C. is to be exercised by the trial Court, suo motu. It could not have been invoked by the prosecution by filing paper No. 40Ka/3 as has been done in the present case. Reliance has been placed on the decision of the Supreme Court in P. Kartikalakshmi vs Sri Ganesh & Anr., (2017) 3 SCC 347.
4. On the other hand, learned A.G.A. would submit, in the present case the power has been exercised under Section 216 Cr.P.C. by the Court. Merely because the prosecution brought to the notice of the Court the need to alter the charge and to charge the present applicants for offence under Section 376D I.P.C. on the basis of evidence received at the trial, it would not have any effect on the nature of power exercised. In absence of any prohibitory provision under the Code preventing the prosecution or the accused from informing the Court the need to alter the charge, the submission being advanced by learned counsel for the applicants is liable to be rejected.
5. Further he would submit, the decision relied upon by the learned counsel for the applicants is distinguishable. In P. Kartikalakshmi (supra), the application moved by the complainant under Section 216 Cr.P.C. had been rejected. The Supreme Court only ruled that the power under Section 216 Cr.P.C. is vested in the trial court. It is not a right given to any party to the proceedings who may claim any benefit there from. To that extent, it was found, the order passed under Section 216 Cr.P.C. was not revisable. Such is not the case here.
6. Having heard learned counsel for the parties and having perused the record, in the first place, Section 216 Cr.P.C. reads as below:-
"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."
7. Clearly, the trial Court may alter or add to any charge at any time before the judgment is pronounced. Insofar as the trial is still pending, there existed power with the learned court below to alter the charge.
8. As to the exercise of that power, it would be hyper-techincal and therefore unacceptable to allow the present application to succeed on the reasoning that the Court must apply its own mind suo motu. Insofar as the learned court below has heard both sides before altering the charge, the procedural requirement and safeguards concerning the rights of the applicants had been adequately addressed. The fact that the prosecution moved a formal application would have no consequence on the nature of power exercised or legality of the exercise undertaken by the learned court below as the learned court below is seen to have applied its independent mind to the need to alter the charges.
9. The application thus filed was only in the nature of intimation given to the Court or concern expressed by the prosecution on the requirement to alter the charge in view of the evidence received at the trial. Seen in that light, the learned court below has considered the evidence of the prosecutrix containing ingredients of the offence describable as an offence under Section 376 D I.P.C.
10. Insofar as that evidence had came on record, the learned court below has not erred in altering the charge, at this stage. What final outcome may emerge after cross-examination of all the witness is not a fact to be weighed at this stage. In short, the learned court below has passed an order upon due application of its mind and not on the insistence or appraisal made by the prosecution. The impugned order does not suffer any infirmity.
11. In fact, applying the reasoning given by the Supreme Court in P. Kartikalakshmi (supra), at this stage, the applicants may not have raised the present challenge.
12. Present application fails and is accordingly rejected.
Order Date :- 19.1.2023
Prakhar
