Allahabad High Court
Mohit @ Vishwas Tiwari vs State Of U.P. And 3 Others on 14 November, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:178850
Court No. - 74
Case :- APPLICATION U/S 482 No. - 21398 of 2024
Applicant :- Mohit @ Vishwas Tiwari
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ansar Ahmad,Sandhya Chaturvedi
Counsel for Opposite Party :- G.A.,Krishna Dutt Awasthi
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing for opposite party no.1 State and Mr. Krishna Dutt Awasthi, learned counsel for opposite party no.2.
2. No one has appeared on behalf of opposite parties no.3 & 4.
3. Application under Section 482 Cr.P.C. has been filed challenging order dated 26.06.2024 passed in Special Trial No.1287 of 2023 arising out of Case Crime No.108 of 2023, under Sections 363, 366, 376, 506 IPC and Section 3/4 POCSO Act, Police Station Shahar, District Auraiya whereby application preferred by the applicant for alteration of charge under Section 216 Cr.P.C. has been rejected.
4. Learned counsel for applicant submits that the first information report was lodged against applicant under Sections 363 and 366 IPC whereafter cognizance was taken under Sections 363, 366 376, 506 IPC and Section 3/4 POCSO Act and charges with regard to same were also framed. It is submitted that a bare perusal of the contents of first information report as well as statement of the alleged victim recorded under Sections 161 & 164 Cr.P.C. clearly do not make out a prima facie case against the applicant under Sections 376 IPC and Section 3/4 POCSO Act due to which the application for alteration of charge was filed and has been rejected by the impugned order. It is submitted that once the alleged victim herself did not support the imposition of such sections, there was no occasion for the trial court to have rejected the application for alteration of charge.
5. Learned Additional Government Advocate as well as learned counsel for opposite party no.2 has refuted submissions advanced by learned counsel for applicant with the submission that cognizance was taken under the aforesaid sections in view of statement of mother of alleged victim clearly indicating allegations under the aforesaid provisions. It is submitted that the fact that the victim was minor at the time of incident is clearly admitted. They have also adverted to the fact that during the course of trial, victim has been examined as P.W.1 and has specifically made the allegation under Sections 376 IPC and Section 3/4 POCSO Act.
6. Learned counsel has adverted judgment rendered by Hon'ble the Supreme Court in the cases of Rajendra Singh Sethia versus The State & Ors. reported in 1989 CRILJ255, Ishwarchand Amichand Govadia & Ors. versus State of Maharashtra & Anr. passed in Appeal (Crl.) No.1051 of 2006, arising out of SLP (Crl.) No.731 of 2006 and K. Ravi versus State of Tamil Nadu & Anr. passed in Criminal Appeal No. ...... of 2024 arising out of Special Leave Petition (Crl.) No.2029 of 2018 to submit that at this stage, the application for alteration of charge cannot be allowed particularly since the applicant had earlier as well filed an application under Section 227 Cr.P.C. which was rejected by a reasoned and speaking order dated 01.12.2023 which has not been challenged.
7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the facts as narrated herein above are admitted. The order passed rejecting applicant's application under Section 227 Cr.P.C. is a well reasoned one which was not challenged whereafter the application for alteration of charge under section 216 Cr.P.C. was filed and has been rejected by means of impugned order. From the material on record, it appears that charges have been framed against applicant on the basis of statement recorded by the mother of alleged victim.
8. It is also noticeable that subsequent to passing of impugned order, the alleged victim has also been examined as P.W.1 and has supported the charges levelled framed under the aforesaid Section.
9. Hon'ble the Supreme Court in the case of Rajendra Singh Sethia (supra) has clearly enunciated that it is not necessary at the stage of framing of charge to discuss the offence indicated for which charge has been framed and alteration of such charge at that stage cannot be permitted since alteration of such charge would amount to splitting of such charge thereby acquitting the accused thereon, which cannot be done until most of the prosecution witnesses have been examined. The same analogy has thereafter been reiterated in the case of K. Ravi (supra).
10. In view of aforesaid facts, circumstances and legal proposition, this Court does not find any occasion to interfere with the impugned order.
11. The application under Section 482 Cr.P.C. being devoid of merits is thus dismissed.
Order Date :- 14.11.2024
Subodh/-
