Arjun Ashok Patil vs The State Of Maharashtra
2021 Latest Caselaw 8124 Bom

Citation : 2021 Latest Caselaw 8124 Bom
Judgement Date : 19 June, 2021

Bombay High Court

Arjun Ashok Patil vs The State Of Maharashtra on 19 June, 2021

Bench: R. G. Avachat

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

             CRIMINAL REVISION APPLICATION NO. 28 OF 2021

 Arjun s/o Ashok Patil                                   ... Applicant
       Versus
 The State of Maharashtra                                ... Respondent
                                   ....
 Mr. S. D. Hiwrekar, Advocate for the applicant
 Smt. Geeta Deshpande, APP for the respondent - State
                                   ....

                                    CORAM : R. G. AVACHAT, J.

DATED : 19th JUNE, 2021

PER COURT :-

. The challenge in this revision application is to the order

dated 01.01.2021, passed by the learned Additional Sessions Judge,

Jalgaon, on application Exh.196 in Special (POCSO) Case No.26 of

2014.

2. The application Exh.196 was moved by the Assistant

Public Prosecutor, Incharge of the case, for framing of additional

charge under Section 376(2)(i)(j)(1) of the Indian Penal Code and

Section 3(a) and (b) of the Protection of Children from Sexual

Offences (POCSO) Act, 2012.



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3. The learned Advocate for the applicant would submit

that the recording of the evidence in the case has already been over.

The case is fixed for argument. The applicant has been in jail. The

applicant is under trial prisoner. Only with a view to delay hearing of

the case, the application was moved. There is no material to connect

the applicant with the alleged offence with which he is sought to be

additionally charged. The learned Advocate would further submit

that if the impugned order is sustained, the applicant would be

prejudiced in his defence. The learned Advocate seeks direction to

the trial Court to grant the applicant an opportunity of cross

examination of the victim, post framing of the additional charge.

4. The learned APP strongly opposed the application on the

ground that there is material to connect the applicant with the

alleged offence. The victim was nine years old. It is not desirable to

call witness of such an age repeatedly, as a witness.

5. Section 216 of the Code of Criminal Procedure, reads as

under:

"216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

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(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alternate 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 of 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 has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

6. I have perused the police papers and the impugned order

to find no reason to interfere with the impugned order.

7. The offence with which the applicant is being

additionally charged, is serious and aggravated.

8. Section 217 of the Code of Criminal Procedure, reads

under:-

"217. Recall of witnesses when charge altered. - Whenever a charge is altered or added to by the Court

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after the commencement of the trial, the prosecutor and the accused shall be allowed -

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;