Chattisgarh High Court
Smt. Mamta Rathore vs State Of Chhattisgarh on 16 July, 2021
Page 1 of 3
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 391 of 2019
Smt. Mamta Rathore W/o Shri Brajesh Kumar Rathore Aged
About 33 Years R/o New Santi Chowk, Masturi, Tahsil Masturi,
District Bilaspur Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Home
Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Post
Office Rakhi, New Raipur, District Raipur Chhattisgarh.
2. Superintendent Of Police Bilaspur, District Bilaspur,
Chhattisgarh.
3. Inspector General Of Police Bilaspur, Divisioan Bilaspur
Chhattisgarh.
4. Station House Officer, Police Station Mahila Thana, Bilaspur
District Bilaspur Chhattisgarh.
5. Brajesh Kumar Rathore S/o Shiv Kumar Rathore Aged About 35
Years R/o Village Gataura, Police Station Masturi, District
Bilaspur Chhattisgarh. Presently Residing At Rajendra Nagar,
Police Station Civil Line Bilaspur Chhattisgarh.
---- Respondents
For Petitioner : Shri Atul Kumar Kesharwani, Advocate
For State : Shri Hariom Rai, Panel Lawyer
For Respondent No. 5 : Shri Chandresh Bajpai, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
Order on Board
16.07.2021
1. The petitioner has filed this writ petition (Cr) under Article 226 of
the Constitution of India challenging the improper and faulty
investigation in Crime No. 03/2019 lodged at Police Station -
Mahila Thana, District - Bilaspur (C.G.).
2. Learned counsel for the petitioner would submit that on the basis
of complaint FIR (Annexure P-3) has been registered under
Section 498-A of the IPC on 22.01.2019 whereas on the basis of
contents of complaint, FIR under Section 494 IPC also should
have been registered.
3. The petitioner has filed copy of the final report which has been
submitted under Section 173 of Cr.P.C. before the concerned
Judicial Magistrate First Class. The final report consist of
statement of respondents and other witnesses.
4. Learned counsel for the petitioner would submit that on the basis
of the evidence collected during trial, offence under Section 494
should have also been registered against respondent No. 5.
5. On the other hand learned counsel for the respondents oppose
the submission.
6. Learned counsel for the petitioner would place reliance upon the
Judgment of Hon'ble Supreme Court in case of Ushaben vs.
Kishorbhai Chunilal Talpada and Others 1 and would refer
paragraph No. 19 of the judgment which is extracted below:-
"19. Upshot of the above discussion is that, no fetters can be
put on the police preventing them from investigating the
complaint which alleges offence under Section 498A of the
IPC and also offence under Section 494 of the IPC. In the
circumstances, the appeal must succeed. The impugned
order is set aside. Obviously, therefore, the direction to
delete Section 494 of the IPC is set aside. The police shall
investigate the complaint in accordance with law."
7. On perusal of the judgment Ushaben (supra) passed by the
Hon'ble Supreme Court, considering the facts mentioned in the
judgment and considering the facts of the present case it is
observed that at present no charge under Section 494 IPC has
been levelled against respondent No. 5 and the final report has
also been submitted before the Judicial Magistrate First Class.
Therefore, the petitioner can very well take resort to Section 216
Cr.P.C. for alteration of charges.
8. Section 216 of the Cr.P.C. is extracted below:-
"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
1 (2012) 6 SCC 353
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 has been already
obtained for a prosecution on the same facts as those on
which the altered or added charge is founded."
9. Invoking of extra judicial writ jurisdiction under Article 226 of the
Constitution of India is not permissible when the petitioner
already has alternative efficacious remedy of filing suitable
application before the concerned Magistrate for alteration of the
charges under Section 216 Cr.P.C.
10. Considering the fact that the petitioner has alternate efficacious
remedy of filing suitable application before the concerned
Magistrate for alteration of the charges under Section 216
Cr.P.C., this Court is of the view that this writ petition is not
maintainable.
11. It is directed that if any application is filed by the petitioner before
the learned Judicial Magistrate First Class for alteration of
charges, the trial Court will decide the same in accordance with
law, considering the materials available on record, without being
influenced by any of the observations made by this Court while
considering this petition.
12. Consequently, the writ petition is hereby disposed off with liberty
as aforesaid granted in favour of the petitioner.
Sd-
(Narendra Kumar Vyas)
Judge
kishore
