Allahabad High Court
Teetu vs State Of U.P. And Another on 24 July, 2023
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:147568
Court No. - 86
Case :- APPLICATION U/S 482 No. - 26303 of 2023
Applicant :- Teetu
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shishir Kumar Tiwari
Counsel for Opposite Party :- G.A.,Vijay Pratap Singh
Hon'ble Rajiv Gupta,J.
1. Heard learned counsel for the applicant, Sri Vijay Pratap Singh, learned counsel for the opposite party No. 2, learned A.G.A. for the State and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed to issue an Ad-interim mandamus directing the ADJ/FTC 1st, Gautam Budh Nagar to consider and decide the pending application dated 3.12.2021 under Section 216 Cr.P.C. in Sessions Trial No. 377 of 2016 (State Vs. Teetu and another) arising out of Case Crime No. 791 of 2015, under Sections 307, 325, 323 IPC, P.S. Surajpur, District- Gautam Budh Nagar, pending in the court of ADJ/FTC 1st, Gautam Budh Nagar within a stipulated period.
3. Learned counsel for the applicant has submitted that the applicant is an accused in the instant case and the charges have already been framed and the trial is in progress. During the pendency of the trial, an application u/s 216 Cr.P.C. has been filed by the applicant with the prayer that from the perusal of the allegations made in the first information report and the material collected during the course of investigation, no offence u/s 307 IPC is made out against the applicant, as such the charge be altered, which application is still pending before the court below.
4. Per contra, learned AGA as well as counsel for the opposite party No. 2 has submitted that accused-applicant has no right to get the charge altered. It is only the discretion of the court concerned to alter or add the charge as provided in Section 216 Cr.P.C. and the law laid down by the Hon'ble Apex Court in P. Kartikalakshmi Vs. Sri Ganesh and Another, (2017) 3 SCC 347.
5. Having considered the rival submission made by the counsel for the parties and keeping in view the law laid down by the Hon'ble Apex Court referred to above, I am of the considered opinion that no direction is required to be given to the court below to decide the application dated 3.12.2021 filed by the accused for alteration of charge by the accused within a stipulated period as held by the Hon'ble Apex Court, wherein it is held that;
9. Section 216 Cr.P.C. empowers the Court to alter or add any charge at any time before the Judgement is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and 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 Cr.P.C. 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 comes to its notice or brought to its notice. In such a situation if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need be passed for that purpose. In such circumstances, when the application preferred by the appellant itself before the Trial Court was not maintainable, it was not incumbent upon the Trial Court to pass an order under Section 216 Cr.P.C.
6. In view of the above, the present application u/s 482 Cr.P.C. is wholly misconceived and is accordingly dismissed.
Order Date :- 24.7.2023
KU
