Bombay High Court
Ku. Seema Uttam Dhabarde vs State Of Maharashtra Thr. Its ... on 14 March, 2022
Bench: Avinash G. Gharote
1 27.APL.235-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 235 OF 2019
( Ku. Seema Uttam Dhabarde
Vs.
State of Maharashtra & Anr. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. R.R. Vyas, Advocate for the Applicant.
Mrs. Shamsi Z. Haider, A.P.P. for the Non-Applicant No.1/State.
Mr. A.T. Purohit, Advocate for the Non-Applicant No.2.
CORAM: AVINASH G. GHAROTE, J.
DATED : 14th MARCH, 2022.
Heard Mr. Vyas, learned counsel for the
applicant, Mrs. Haider, learned App for the non-applicant
No.1/State and Mr. Purohit, learned counsel for the
non-applicant No.2.
2. The application challenges the order dated
05.02.2019 passed below Exh.98, whereby the
application filed by the complainant through the
prosecution for framing additional charge has been
rejected.
3. Mr. Vyas, learned counsel for the applicant
submits, that though there was material on record to
indicate the framing of additional charge under Section
313, 328 and 307 of the Indian Penal Code, the
impugned order would indicate, that the learned
2 27.APL.235-2019.odt
Sessions Court, has not applied its mind to it and has
merely on the contention, that the report of the
complainant had made vague allegations against the
accused, has dismissed the application. He therefore
submits, that the impugned order needs to be quashed
and set-aside and the matter be remanded back to the
learned Sessions Court for an appropriate decision after
taking into consideration all the material on record
including charge-sheet as well as the evidence of the
complainant.
4. Mr. Purohit, learned counsel for the
non-applicant No.2, opposed the application and inviting
may attention to the statement of the Doctor contends
that it was the complainant/applicant herself, who had
gone to the maternity home for getting an abortion, and
therefore, the allegation that there was material to frame
additional charge is not borne out. He further contends,
that though the charge was framed on 07.11.2014 and
the complainant was examined on 18.03.2017, the
application for framing additional charge came to be
filed on 11.01.2019; and there is contradiction in the
First Information Report, statements and depositions. He
therefore submits, that the application needs to be
rejected.
5. Section 216 of the Code of Criminal
Procedure grants power to the Court to alter or add to
the charge at any time before the judgment is
pronounced. However, in order to do so, the Court shall
have to apply its mind to the entire material in the
3 27.APL.235-2019.odt
charge-sheet to come to a conclusion, whether there was
necessity for any addition or alteration of the charge. The
impugned order, however does not indicate the same
having been done. In the instant case, though there are
certain averments in the complaint and the complainant
herself has been examined, the application has been
rejected merely on the ground, that the report of the
complainant has vague allegations. In my considered
opinion, the order falls short of the requirement of
application of mind to the entire charge-sheet, and
therefore, on this ground cannot be sustained and thus it
is quashed and set-aside. The matter is remitted back to
the learned Sessions Court to consider the entire material
on record in order to determine whether there is a case
made out for the purpose of framing of additional charge
and so also to the given reason for the same.
6. The Application is accordingly allowed to the
extent indicated above.
JUDGE
SD. Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:15.03.2022 10:46
