Gulzar vs State Of U.P. Thru. Secy. Home Deptt. ...
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Allahabad High Court

Gulzar vs State Of U.P. Thru. Secy. Home Deptt. ... on 26 May, 2025

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:31233
 
Court No. - 14
 

 
Case :- APPLICATION U/S 482 No. - 4233 of 2025
 

 
Applicant :- Gulzar
 
Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Sectt. Lko. And Another
 
Counsel for Applicant :- Ram Prakash Singh,Vivek Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Kumar,J.
 

1. Supplementary affidavit has been filed today bringing on record that till date charge under Sections 324 & 302 IPC has yet not been framed by enclosing the certified copy of the order sheet which is taken on record.

2. The instant application under Section 482 Cr.P.C. read with Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 has been filed by the applicant with the following prayers:-

"For the facts, reasons and circumstances as stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble court may kindly be pleased to quash the order dated 01.04.2025 passed by Additional Sessions Judge, Court no. 1, Gonda in S.T. No. 244/2014 related to case crime no. 116 of 2014 under section 307 IPC, Police Station - Umari Begumganj, District - Gonda, (State Versus Gulzar), in the interest of justice.

It is further prayed that this Hon'ble Court may also be pleased to stay the operation and implementation of the order dated 01.04.2025 passed by Additional Sessions Judge, Court no. 1, Gonda, in S.T. No. 244/2014 related to case crime no. 116 of 2014 under section 307 IPC, Police Station - Umari Begumganj, District Gonda, (State Versus Gulzar), in the interest of justice."

3. Brief facts of the case are that an FIR dated 20.06.2014 has been lodged by the respondent no. 2 under Sections 302 & 324 IPC against the applicant. The Police after investigation has filed the charge sheet only under Section 307 IPC in the year 2017 and in pursuance thereof, the charge has been framed against the applicant and the proceedings have attained finality uptil the stage of Section 313 Cr.P.C.

4. After completion of the proceedings uptil the stage of Section 313 Cr.P.C., the prosecution had moved an application on 04.03.2025 under Section 216 Cr.P.C. for modification/amendment of charge from Section 307 to Section 324 & 302 IPC. The learned trial court has allowed the application under Section 216 Cr.P.C. preferred by the prosecution by passing the impugned order dated 01.04.2025 and fixed the date for framing of charge under Sections 324 & 302 IPC also. Feeling aggrieved by the same, the present application has been preferred.

5. Learned counsel for the applicant has submitted that no application under Section 216 Cr.P.C is maintainable on behalf of either of the parties. It is the discretion of the court as only the court is empowered to alter or add the charge under Section 216 Cr.P.C and in support of his submission, he relied upon the judgment of this Court dated 05.07.2019 in the case of Kuldeep versus State of U.P, passed in Application under Section 482 Cr.P.C No. 10708 of 2019, by placing reliance upon the law laid down by the Hon'ble Supreme Court in the case of P. Kartikalakshmi versus Shri Ganesh and another; (2017) 2 SCC (Cri) 84.

6. It is further submitted that the application under Section 216 Cr.P.C on behalf of the prosecution is not maintainable and it has wrongly been allowed by the learned trial court. In support of his submission, he has relied upon the judgments of the Hon'ble Supreme Court in the case of P. Kartikalakshmi versus Shri Ganesh and another, reported in (2017) 3 SCC 347, K. Ravi versus State of Tamil Nadu and Another, reported in 2024 SCC Online SC 2283, and also the judgment of the High Court in Arvind Yadav versus State of U.P and another passed in Application under Section 482 No. 41830 of 2022.

7. On the other hand, learned AGA has very fairly submitted that as per Section 216 Cr.P.C., no application could be maintainable either on behalf of the accused prosecution or the complainant. It is the discretion of the Court to take the call and is unable to dispute the judgment relied by learned counsel for the applicant.

8. After hearing learned counsel for the parties and going through the records of the case and the judgments cited by the respective parties, the Section 216 Cr.P.C empowers the court to alter or add any charge at any time before the judgment is pronounced. For convenience, Section 216 Cr.P.C. is quoted hereinbelow:-

"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 has 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."

9. From perusal of the aforesaid Section which reveals that undoubtedly, the court may alter or add any charge before judgment is pronounced but at the same time, for alteration of charge, no application is maintainable on behalf of either of the parties, as settled by the Hon'ble Supreme Court in the case of P. Kartikalakshmi (supra) which has been followed till date. The relevant extracts of the judgment in the case of P. Kartikalakshmi (supra) are quoted hereinbelow:-

"6. Having heard learned counsel for the respective parties, we find force in the submission of learned senior counsel for respondent no.1. Section 216 Cr.P.C. empowers the Court to alter or add any charge at any time before the judgment 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. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law. (emphasis supplied)

7. We were taken through Sections 221 & 222 of the Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 Cr.P.C. If such a course to be adopted by the parties is allowed, then it will be well nigh impossible for the Criminal Court to conclude its proceedings and the concept of speedy trial will get jeopardized." (emphasis supplied)

10. This Court by its judgment and order dated 22.05.2023 passed in Application under Section 482 No. 41830 of 2022 (Arvind Yadav vs. State of U.P. and Anr.). The relevant paragraphs of the same are quoted hereinbelow:-

"14. The law has been settled by Hon'ble Apex Court in the case of P. Kartikalakshmi (supra) that the power of invocation of Section 216 Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment. It is also held by Hon'ble Apex Court that no party neither de-facto complainant nor the accused or for that kind of matters, the prosecution has any vested right to seek any addition or alteration of charge. The Hon'ble Apex Court has held that the application filed on behalf of complainant before the trial court under Section 216 Cr.P.C. was not maintainable.

15. Now it is well settled law that no party either complainant or accused has any vested right to move any application under Section 216 Cr.P.C. to add or alter any charge and any application moved by any party is not maintainable and it is only the Court which is empower to alter or add any charge at any point of time before pronouncement of judgment. (emphasis supplied)

16. In the present case, the application filed by informant/opposite party no.2 under Section 216 Cr.P.C. was allowed by the trial court by the impugned order, which is against the law."

11. The relevant paragraph of the judgment and order dated 05.07.2019, which has been relied by learned AGA in the case of Kuldeep (supra) is quoted hereinbelow:-

"In the said matter, issue before the Court was that whether application moved by the private counsel on behalf of informant could have been entertained or not and Court has held that moving application is nothing but bringing into the notice of the learned Magistrate about the defect in framing of the charge. Court could have done it suo motu or being brought into its notice, therefore, there is no infirmity and illegality, if the charges are altered on the application filed by a private counsel on behalf of informant. Therefore, it is very much clear that the subsequent judgement is not contrary to earlier judgement i.e. P. Kartikalakshmi (Supra) and it is in consonance with earlier judgement affirming the law laid down by the Apex Court in the first judgement. He has also placed reliance upon Full Bench judgement of this Court in the case of Ganga Saran (Supra) and submitted that in case, if there are two judgements on the same point, later judgement shall prevail over the earlier judgement. Full Bench judgement is not applicable in the present case as both the judgements i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra) are not contrary to each other, but in consonance with each other. Lastly, he has placed reliance upon the judgement of this Court in the case of Harveer Singh (Supra), where according to learned counsel for the applicant, Court after considering both the judgements, has affirmed the order of revisional court by which section 307 I.P.C. was added in the charges after rejection of application by the Magistrate. I have perused the said judgement. Though in the said judgement, there is reference of both judgements i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra), but only after reference, Court has proceeded to pass order on the facts of the case without giving any finding that why in light of both the judgements of Apex Court, learned Magistrate is bound to pass order and revisional court has rightly exercised its jurisdiction. In fact, while deciding the application, Court has not considered the law laid down by the Apex Court in the cases of P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra), therefore, the same cannot be followed as it is contrary to law laid down by the Apex Court and further does not give finding in judgement for not following both the judgements of the Apex Court, which clearly say that no party has any right to move application under section 216 Cr.P.C. for alteration of charges.

Therefore, considering the facts and circumstances of the case as well as law laid down by the Apex Court, this fact is very much clear that under section 216 Cr.P.C., neither prosecution nor defence has any right for alteration of charges and their right only confined to bring some evidence or fact into the notice of Court for alteration of charge, but thereafter it is only upon the Court to alter the charge or reject the application for alteration of charges." (emphasis supplied)

12. In view of the facts and circumstances as discussed hereinabove, keeping in mind the law settled as aforesaid, the learned trial court has amended the charges on the basis of the application moved by the prosecution which was not even maintainable and allowing the same by the learned trial court is not tenable in the eyes of law and is against the well settled proposition of law by the Hon'ble Supreme Court, as discussed above.

13. In the result, the application is allowed.

14. The impugned order dated 01.04.2025 passed by Additional Sessions Judge, Court no. 1, Gonda in S.T. No. 244/2014 related to case crime no. 116 of 2014 under section 307 IPC, Police Station - Umari Begumganj, District - Gonda is hereby set aside.

Order Date :- 26.5.2025

Nitesh