Rukam Singh vs State Of U.P. And Another
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Allahabad High Court

Rukam Singh vs State Of U.P. And Another on 24 April, 2025

Author: Manju Rani Chauhan

Bench: Manju Rani Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:62544
 
Court No. - 52
 

 
Case :- APPLICATION U/S 528 BNSS No. - 1039 of 2025
 

 
Applicant :- Rukam Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ashutosh Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.
 

1. Heard Mr. Ashutosh Upadhyay, learned counsel for applicant as well as Mr. S.N. Tiwari, learned A.G.A. for State and perused the record.

2. The present 528 BNSS application has been filed to quash/set-aside the order dated 20.12.2024 passed by Additional District & Session Judge/Special Judge, (S.C./S.T. Act), Sambhal at Chandausi in S.S.T. No.139 of 2019 (State vs. Rukam Singh & Others), arising out of Case Crime No.526/2017, under Sections 323, 504 I.P.C. and Sections 3(1)da, dha S.C./S.T. Act, Police Station- Rajpura, District- Sambhal, whereby the learned trial court has altered the charges under Section 354 I.P.C. and Section 7/8 POCSO Act and sent the file before the District Judge for transferring the trial before the competent court having jurisdiction of POCSO Act.

3. Brief facts of the case are that an FIR was lodged on 06.11.2017 against four named accused including the applicant under Sections 354A, 323 I.P.C. & Section 3(2)(va) SC/ST Act by the opposite party no.2 with the allegations that on 3.11.2017 at about 11:00AM when she was going towards the fields, one Rukam Singh (applicant) finding her alone, tried to misbehave with her. He caught hold of her hand with bad intention and dragged her towards the sugarcane fields, on which the opposite party no.2 raised an alarm and hearing her scream, one Giriraj and Gyan Singh came to rescue her. The alleged accused persons including the applicant, seeing the aforesaid persons, came out of the sugarcane fields and assaulted the victim as well as the aforesaid persons. After investigation, charge sheet has been submitted under Sections 323, 504 I.P.C. and Section 3(1)(Da)(Dha) SC/ST Act.

4. Learned counsel for the applicant has challenged the order dated 20.12.2024 on the ground that during the course of investigation, the statement of victim was recorded under Section 161 Cr.P.C where she has not taken the name of the applicant, whereas in the statement of the victim recorded under Section 164 Cr.P.C., she has spoken about an alleged accused Vijay Singh and exaggerated her version by giving a description of the incident which took place on the said date. However, at a later stage, in the aforesaid statement, she has spoken about applicant-Rukam Singh molesting her and nothing being done by Vijay Singh. Even before the trial court, in the statements recorded under Sections 161 and 164 Cr.P.C. which was in a sealed envelope was shown to the victim, she spoke of not remembering about any such statement being given when and where. On 12.11.2024 an application has been moved by Special Public Prosecutor for alteration of charges relying solely upon the statement of the victim recorded under Section 164 Cr.P.C. based on which the order dated 20.12.2024 has been passed, which is illegal and bad in the eyes of law.

5. Learned counsel for the applicant further submits that from the version of the FIR and the variations in the statements recorded under Sections 161 & 164 Cr.P.C. as well as not remembering about the statement recorded under Section 164 Cr.P.C. given while being examined during the trial and after the prosecution evidence was closed on 08.10.2024, the matter was posted for Section 313 Cr.P.C. Such an application could not have been entertained that too solely relying upon the statement recorded under Section 164 Cr.P.C. In support of his submission, he has relied upon a judgment passed by Division Bench of this Court, at Lucknow Bench vide order dated 16.01.2019 in Misc. Bench No. - 28660 of 2018 (Haider Ali vs. State of U.P. Thru. Secy. Home & Ors.), therefore, the aforesaid order may be set-aside.

6. Learned A.G.A. on the other hand has placed reliance upon Section 239 BNSS and submits that the charge can be altered at any stage before judgment is pronounced. The argument as placed by learned counsel for the applicant that the order dated 20.12.2024 has been passed solely relying upon the statement recorded under Section 164 Cr.P.C. is not well founded, as from the application moved by the Special Public Prosecutor, it is clear that in the statement before the trial court, the victim has supported her statement as given under Section 164 Cr.P.C., therefore, the statement recorded under Section 164 Cr.P.C. has been read along with the statement as given by the victim before the trial court and the order has been passed relying upon the statement given under Section 164 Cr.P.C. as well as the statement given before the trial court.

7. Learned A.G.A. further submits that even before the trial court though, at the time of incident which happened in the year 2017, the victim was 15 years old and the statement before the trial court ha been recorded in the year 2024, therefore, it is quite probable that the victim may not have remembered as to where and when the statement was recorded but the same has not been denied as the thumb impression and the photograph have been verified and accepted by her. He further contends that the judgment as relied by learned counsel for the applicant is not relevant to the facts of the present case as the statement recorded under Section 164 Cr.P.C. has not been made the sole basis of passing the order.

8. While interpreting powers of Court under Section 216 Cr.P.C. (now Section 239 BNSS) to alter or add any charge, the Hon?ble Apex Court in case of Central Bureau of Investigation Vs. Karimullah Osan Khan reported in (2014) 11 SCC 538, has tried to explain the expression.

?at any time?, ?before judgement is pronounced?, and has also dealt with the material/basis on which charge(s) may be added, altered after conclusion of the trial.

9. Relevant paragraphs of the aforesaid judgement are reproduced herein below:-

?17. Section 216 CrPC gives considerable powers to the Trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add any charge, subject to the conditions mentioned therein. The expressions ?at any time? and before the ?judgment is pronounced? would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused.

18. Section 216 CrPC confers jurisdiction on all Courts, including the designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and Sub-Sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court. (See Harihar Chakravarty v. State of West Bengal AIR 1954 SC 266. Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in in Section 216 CrPC and other related provisions.?

10. The Apex Court in a full bench decision in the case of Harihar Chakravarty Vs. State of West Bengal reported in AIR 1954 SC 266, has gone to the extent to hold that the direction to alter the charge so as to include an offence for which the appellant was not originally charged, could only be done if the trial Court itself had taken action under Section 227 Cr.P.C. before it pronounced judgement. It could only have done so if there were materials before it either in the complaint or in the evidence to justify such action.

11. Thus, it can be interpreted in such a manner that the concerned Court has the power to alter or modify any charge prior to pronouncement of the judgement, in case, there is material before it. Irrespective of the fact as to whether it is the material as collected by the Investigating Officer, which has been placed before the trial Court after submission of the charge sheet or when the Court concerned is proceeded with the trial, thus collecting evidence at the time of trial.

12. Thus the Court in the aforesaid case opined that the trial Court could issue a direction for alteration of the charge if there were materials before it in the complaint or any evidence to justify such action. The sum and substance as understood is that if there are allegations in the complaint, petition or for that matter in FIR or accompanying material, the Court can alter the charge.

13. This Court is of the opinion that the powers under Section 216 Cr.P.C. regarding alteration or addition of charge is for an offence made out by the evidence recorded during course of trial before the Court, which does not necessary mean that the alteration can be done only in case where evidence is adduced. Section 216 Cr.P.C., as is evincible does not lay down that the Court cannot alter the charge solely because it has framed the charge. The Court finds that the question of any such addition or alteration generally arises either because the charge already framed is defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the Court. In other words, the Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of complaint or the FIR or accompanying documents or material brought on record, during the course of trial and can also be done at any time before pronouncement of the judgement. Thus, as held in case of Anant Prakash Sinha Alias Anant Sinha Vs. State of Haryana And Another reported in (2016) 6 SCC 105, charges can be framed on the basis of evidence on record and it is not necessary to adduce new evidence for altering or modifying the charge.

14. It would be appropriate to quote paragraph 18, which is as follows:

?18.From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.?

15. Considering the submissions advanced by learned counsels for the parties as well as the law settled by the Apex Court, this Court finds that the charges can be altered at any stage before judgment is pronounced in view of Section 239 BNSS. The fact that order dated 20.12.2024 has been passed solely relying upon the statement recorded under Section 164 Cr.P.C. is not well found as from the application moved by the Special Public Prosecutor, it is clear that in the statement before the trial court, the victim has supported her statement as given under Section 164 Cr.P.C., therefore, the statement recorded under Section 164 Cr.P.C. has been read along with the statement as given by the victim before the trial court and the order has been passed relying upon the statement given under Section 164 Cr.P.C. as well as the statement given before the trial court, therefore, no interference is required.

16. In view of the aforesaid discussion, this Court does not find any error in the order impugned dated 20.12.2024, accordingly the present application u/s 528 BNSS is dismissed.

Order Date :- 24.4.2025

Kalp Nath Singh