Allahabad High Court
Aakash Sharma vs State Of U.P. And Another on 24 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:172895
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 2761 of 2025
Aakash Sharma
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Ashwani Kumar Pandey, Rajesh Kumar Dubey
Counsel for Opposite Party(s)
:
Ajai Mani Tiwari, G.A.
Court No. - 86
HON'BLE NALIN KUMAR SRIVASTAVA, J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.
2. The present Criminal Revision is being preferred by the revisionist against the judgment and order dated 18.4.2025 passed by the learned Additional Sessions Judge/Additional Special Judge (POCSO Act), Court No. 2, Mathura in Sessions Trial No. 238 of 2018 arising out of case crime no. 1090 of 2015 under Sections 366, 342, 506 I.P.C., P.S.- Vrindavan, District- Mathura whereby the trial Court has allowed the application of the informant/ opposite party no.2 and fixed the date for framing of charge under Section 376 I.P.C.
3. Learned counsel for the revisionist has submitted that earlier charge sheet was submitted under Section 366, 342, 506 I.P.C. and subsequently on an application moved by informant/ opposite party no.2 the Court is adamant to frame charge under Section 376 I.P.C. also and vide order dated 18.4.2025 the application 70-Kha moved by the informant/ prosecution was allowed and the objection paper no. 72-kha filed on behalf of the accused revisionist was rejected. It is further submitted that the impugned order is baseless and illegal.
4. It is further submitted that on 17.10.2018 the charges were already framed by the trial Court under Section 366, 376, 342 and 506 I.P.C. and the said charges were set aside by the competent Court vide order dated 22.2.2021 and it was directed the trial to proceed only under Sections 366, 342, 506 I.P.C. after deleting the charge framed under Section 376 I.P.C. but however by passing the impugned order dated 18.4.2025 the trial Court indirectly made review of its order which is not permissible under law. It is further submitted that the FIR of this case was lodged under Section 366 I.P.C. and after completion of investigation the I.O. submitted the charge sheet under Sections 366, 342, 506 I.P.C. It is also submitted that the statement of the victim recorded under Section 161 Cr.P.C. clearly shows that the victim of the case is consenting party to the relation. She is a major lady and had voluntarily visited public places with the revisionist and at any point of time he never raised any alarm or asked for help from any public person. The impugned order is based upon surmises and conjectures without any cogent reason. There is nothing on record which brings the matter within the purview of Section 376 I.P.C. The impugned order is wholly arbitrary and contrary to the provisions of law and is liable to be dismissed.
5. Per Contra, learned counsel for the opposite party no.2 and learned A.G.A. vehemently opposed the prayer. It has been submitted that the FIR of any case is not an encyclopedia. It was initially lodged under Section 366 I.P.C. as the informant was never in the position to know as to what treatment was done with her daughter at the time of registering the FIR. In her statement under Section 161 Cr.P.C. although the victim has admitted her visits to some public places and even at the High Court and it was also alleged by her that she was brought by the accused revisionist Akash Sharma to the Court for performing marriage with her and her voter id has also taken by the accused revisionist. She has made a specific statement that she does not want to marry with the revisionist and wants to live with her parents. She has also admitted that when she was taken to the house of the Bua of the revisionist he made physical relations with her and she was kept under confinement and forged papers for marriage were prepared by the revisionist. In her statement under Section 164 Cr.P.C. as well she has stated that under threat and compulsion she went to some places and to High Court as well with the revisionist and she was forcefully detained in the house of the Bua of the revisionist where she was assaulted by the revisionist, his sister and Bua and on one day she got an opportunity to fly away from there and she came to her house. It is further submitted that there are fluctuating statements made by the victim in her statements under Section 161 and 164 Cr.P.C. It is further submitted that charge on 17.10.2018 was framed against the revisionist under Section 366, 376, 342, 506 I.P.C. whereas charge sheet was submitted only under Section 366, 342, 506 I.P.C. It is also submitted that the learned trial Court while passing order dated 22.2.2021 held that at the stage of cognizance it was found that no offence under Section 376 I.P.C. is made out against the accused revisionist and it deleted the offence under Section 376 I.P.C. from the charges framed by the learned trial Judge on 17.10.2018. However, subsequently again it was held that charge under Section 376 I.P.C. is also made out against the revisionist.
6. It is further submitted that the informant had taken shelter of the High Court by filing application U/S 482 Cr.P.C. No. 8700 of 2021 wherein the co-ordinate Bench of this Court observed that whether offence under Section 376 I.P.C. is made out or not it is a matter of evidence which can be decided only after the examination of the victim before the High Court and with this direction the application U/S 482 Cr.P.C. aforesaid was disposed of and now after recording the evidence of the victim the impugned order was passed to frame the charge under Section 376 I.P.C. as well.
7. It is true that the FIR was not lodged under Section 376 I.P.C. and the charge sheet was filed only under Section 366, 342 and 506 I.P.C. The statement of P.W.2, the victim, is already on record which was recorded on 22.8.2024 and the statement made by the victim ultimately shows the prima facie offence under Section 376 I.P.C. is also made out in this case. On the basis of statement made by the victim of this case as P.W.2 on oath the impugned order has been passed. It is kept in mind that under Section 216 Cr.P.C. charges may be altered before the pronouncement of the judgement at any time. To clarify the issue it is desirable to have a glance upon the provisions of Section 216 Cr.P.C. which are reproduced as herein under-
"Section 216 Cr.P.C.-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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
8. The said provisions are very clear on the point that it is the discretion of the Court to alter or add any charge at any time before delivering the judgement. Although it is a duty of the Court at the time of alteration of charge to assure that no prejudice is caused to the accused and his right to have a fair trial should not be curtailed. In the instant matter since there are some elements and materials on record of which it may inferred that physical relations were made by the revisionist with the victim that is why charge under Section 376 I.P.C. was also framed. However, after completion of the investigation when a charge sheet is submitted by the I.O. and the trial starts before the Court, the role of the I.O. is closed and now it is the discretion of the Court to proceed with the matter after framing appropriate charges against the accused and the I.O. now has no role to play. The learned trial Court by invoking its discretionary power under Section 216 Cr.P.C. passed an order to frame charge under Section 376 I.P.C. also against the accused which was well clarified in the impugned order passed by the trial Court that only by framing of charge for a particular offence, the offence is not proved, it is always proved by evidence. Hence, the trial Court also made it clear that after recording the entire evidence only it may be concluded that all or what charges were proved and what not. Since in this matter the victim/ deponent as P.W.2 has deposed before the Court and found that from her statements prima facie offence under Section 376 I.P.C. is made out, the learned trial Court has made no legal error or mistake to add Section 376 I.P.C. during the trial after adding the appropriate offence in the charge.
9. In the facts and circumstances of the case, I do not find any illegality or perversity in the impugned order 18.4.2025 passed by learned Additional Sessions Judge/ Additional Special Judge (POCSO Act), Court No.2, Mathura, and this Court is not inclined to make any interference in the impugned order passed by the learned trial Court.
10. In view of the above, the instant revision is liable to be dismissed and is accordingly, dismissed.
(Nalin Kumar Srivastava,J.)
September 24, 2025
Fhd
