Delhi High Court
Xxxx vs State & Ors. on 11 October, 2022
[1]
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRIMINAL MISCELLANEOUS CASE NO. 4421 OF 2022,
CRL.M.A. 18014/2022 & CRL.M.A. 18015/2022
Between:-
XXXX
D/O XXX
R/O XXX ........PETITIONER
(Through: Mr. Mahavir Sharma, Ms. Nikita Agarwal and Mr. K
P Singh, Advocates.).
AND
STATE
(GOVT. OF NCT OF DELHI) ......... RESPONDENT NO. 1
DR. SURESH CHANDRA VATS
S/O OM PRAKASH SHARMA
R/O C-404, SARASWATI VIHAR,
DELHI-110088 ......... RESPONDENT NO. 2
ALSO AT:
ORCHID PETALS APARTMENT, VILLA NO.9,
SOHNA ROAD, GURGAON
AND AT:
VIVEKANANDA INSTITUTE OF
PROFESSIONAL STUDIES,
AU BLOCK, RANIKHET, PITAMPURA,
DELHI-110034
Signature Not Verified
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By:PRATIMA
Signing Date:11.10.2022
14:44:35
[2]
NAVAL JHA
S/O SH. SATYANARAYAN JHA
R/O E-27, BEGAM VIHAR,
BEGUMPUR, DELHI ......... RESPONDENT NO. 3
JAGDISH
S/O SH. BHIKAM RAM,
R/O VILLAGE & PO SAKRI,
TEHSIL BAIJNATH, KANGRA
HIMACHAL PRADESH ......... RESPONDENT NO. 4
C/O C-404, SARASWATI VIHAR,
DELHI-110088
(Through: Mr. Utkarsh, APP for the State with SI Narain, PS:
Maurya Enclave.
Mr. N. Hariharan, Senior Advocate with Mr. Sahil
Ahuja, Mr. Vaibhav Sharma and Mr. Rakesh
Malhotra, Advocates for R-2. )
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% Pronounced on : 11.10.2022
JUDGMENT
PURUSHAINDRA KUMAR KAURAV, J.
1. The petitioner in the instant petition under Section 482 of the Code
of Criminal Procedure, 1973 (in short, Cr.P.C.) seeks for issuance of
direction to the trial court to pass an order on the application under
Section 216 read with Section 323 of the Cr.P.C for addition of charge
under Section 376 of the IPC before proceeding further with the
recording of evidence.
2. The facts of the case show that on 28.01.2015, the petitioner made
a complaint to the SHO of Police Station Maurya Enclave, Delhi
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Signing Date:11.10.2022
14:44:35
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regarding commission of offence of sexual harassment, stalking and
threat to murder. Since no action was taken on the said complaint,
therefore, the petitioner on 17.02.2015, filed an application under Section
156 (3) of the Cr.P.C before the court of learned ACMM, Rohini courts
for issuance of direction to register an FIR. On 17.02.2015 itself, before
issuance of any direction on her petition under Section 156 (3) of
Cr.P.C., the concerned police registered an FIR No.149/2015 against the
respondent for offences punishable under Sections
376(2)(d)/354/354A/354B/354D/506/201/34 of the IPC and 67A of the
Information Technology Act, 2000 (in short 'IT Act')
3. After investigation, the police submitted the chargesheet. On
18.01.2018, the learned Additional Sessions Judge discharged respondent
No.2/accused for the offence punishable under Section 376 (2) (d) of
IPC. However, the said court found the respondents/accused to be liable
for trial for other offences. Since the other offences were triable by
Magistrate, accordingly, the respondents/accused were directed to appear
before the CMM, North-West in terms of Section 228 of Cr.P.C for trial
of other offences, for which chargesheet was filed against them.
4. During the course of the trial, the learned trial court proceeded to
record the evidence of prosecution witnesses. After examination of the
prosecutrix as PW-6, she was extensively cross-examined and, thereafter,
on 23.07.2022, when her evidence was complete, the
petitioner/prosecutrix filed an application under Section 216 read with
Section 323 of the Cr.P.C before the concerned Metropolitan Magistrate
for addition of charge under Section 376(2)(d)(k) of the IPC and for
committal of the trial to the Sessions Court. Along with the aforesaid
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application, the petitioner also filed an application under Section 216 (4)
of the Cr.P.C. for adjournment of the proceedings. On 23.07.2022, the
learned MM had taken note of the said application and granted time to
the defence counsel to file appropriate reply to the said application. The
trial was accordingly directed to be listed for argument on the pending
application as well as for further prosecution evidence on 29.07.2022.
The matter was taken up for further consideration on 30.07.2022 instead
of 29.07.2022. The learned counsel appeared on behalf of the
complainant and made his arguments on the application under Section
216 of the Cr.P.C. The court thereafter proceeded to record that the
matter to come up for orders/evidence on 08.08.2022. The aforesaid
order was immediately objected by the learned counsel appearing on
behalf of the complainant on the ground that the application under
Section 216 of the Cr.P.C. should be decided first before proceeding to
take further evidence. According to him, even if the application is not
being decided, the learned Judge should adjourn the matter till
appropriate order on her application under Section 216 of the Cr.P.C. is
passed. The learned MM, however, posted the matter on 08.08.2022
itself, as has been directed by the court concerned in its initial part of the
order sheet. On 08.08.2022, the Presiding Officer was on leave.
Therefore, the matter was further taken up on 22.08.2022. The learned
MM on 22.08.2022, directed for further arguments on the application
under Section 216 of the Cr.P.C. and for prosecution evidence on
01.09.2022. On 01.09.2022, the matter was further adjourned for
recording of further prosecution evidence on 20.09.2022.
5. The learned counsel appearing on behalf of the petitioner submits
that the course followed by the learned MM is absolutely illegal and
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improper, inasmuch as, when an application under Section 216 of the
Cr.P.C. is under consideration, the trial court should not have proceeded
to record further prosecution evidence as the same would result in
causing great prejudice to the petitioner. If her application for addition of
charge is accepted, the trial will have to be committed to the Court of
Sessions and hence the entire exercise of recording of the further
evidence would become a futile exercise. In support of his submissions,
he has placed reliance on decisions of the Hon'ble Supreme Court in the
matters of Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh
& Ors.1 and Anant Prakash Sinha v. State of Haryana & Anr.2.
Reliance is also placed on the decision of this court in the matters of
Mahender Singh v. State of NCT of Delhi and Ors.3, X v. State of NCT
of Delhi and Anr.4 and the decision in the matter of Miss Y v. State &
Anr. 5.
6. Learned senior counsel appearing on behalf of the
respondents/accused, on advance notice, opposes the prayer and submits
that the entire endeavor by the petitioner is to protract the proceedings of
the trial. According to him, a detailed reply to the application submitted
by the petitioner was filed by the accused. It has also been submitted that
the provisions under Section 216 of the Cr.P.C. are enabling in nature
and it is for the court concerned to decide at appropriate stage as to
whether the charges in question are required to be altered or to be added.
Learned senior counsel places reliance on the decision of the Hon'ble
1 2020 12 SCC 467
2 (2016) 6 SCC 105
3 2020 SCC OnLine Del 1760
4 2016 SCC OnLine Del 2742
5 2016 SCC Online Del 5185
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Supreme Court in the matter of P Kartikalakshmi v. Sri Ganesh and
Anr.6, and submits that the instant petition is misconceived and this court
should not entertain it, at this stage.
7. I have heard learned counsel appearing on behalf of the parties and
perused the record.
8. The question which requires to be considered by this court is as to
whether the trial court has committed any error in keeping the application
under Section 216 of the Cr.P.C. pending and simultaneously proceeding
with recording of the further prosecution evidence. In the case in hand,
the Magistrate has not declined to entertain the application or the instant
is not the case where the Magistrate has passed an order rejecting the
application. It is the case where no order on an application under Section
216 of the Cr.P.C. has been passed. The question that arises for
consideration is whether this court should direct the Magistrate to pass
order on an application under Section 216 of the Cr.P.C., at this stage.
9. Under the provisions of Section 216 of the Cr.P.C., the court is
certainly authorized to alter or add to the charge at any time before the
judgment is pronounced. Sub-Section 216 (4) of the Cr.P.C.
contemplates a situation where the addition or alteration of charge will
prejudice the accused and empowers the court to either direct a new trial
or adjourn the trial for such period as may be necessary to mitigate the
prejudice likely to be caused to the accused. Section 217 of the Cr.P.C.
deals with recalling of the evidence when the charge is altered or added
by the court, after commencement of the trial. The Hon'ble Supreme
Court in the matter of P Kartikalakshmi (supra) as cited by the
6 (2017) 3 SCC 347
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respondents has held that the power vested with the court is exclusive to
the court and there is no right with any party to seek for such addition or
alteration by filing any application as a matter of right. It has also been
held that the provision 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 needs to be passed for that purpose.
10. It is, thus, seen that so far as the interpretation with respect to
provision of Section 216 of the Cr.P.C. is concerned, the same is an
enabling provision. The decision in the case of P Kartikalakshmi (supra)
is fully applicable. The same is a binding precedent for the issue involved
in the instant case. As far as the decision in the case of Dr. Nallapareddy
Sridhar Reddy (supra) cited by the learned counsel appearing on behalf
of the petitioner is concerned, the same relates to a case where the
appellant was aggrieved with the directions issued by the concerned
court for framing of charges against him for offence punishable under
Sections 406 and 420 of the IPC. Initially, the charges under Sections
406 and 420 of the IPC were not framed against the accused, however,
the order of discharge was challenged by the other side before the High
Court. The High Court opined that the order of the trial court was
without any reason as ingredient of Sections 406 and 420 of the IPC were
not attracted. Therefore, after examining the material available on record,
the court directed for framing of additional charges under Section 406
and 420 of the IPC. The said order was challenged by the appellant in
that case before the Hon'ble Supreme Court. It is thus seen that the
decision in the case of Dr. Nallapareddy Sridhar Reddy (supra) would
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not be applicable in the instant case as the said decision is an authority
for the proposition laid down therein that alteration of charge can be
made on the pronouncement of judgment also. The same is not the issue
involved in the present case.
11. In the matter of Anant Prakash Sinha (supra), the Hon'ble
Supreme Court was considering two aspects of the matter. The first
aspect was that whether without evidence being adduced, another charge
could be added, and the second aspect, was as to whether the learned
Magistrate was right in his approach in entertaining the application
preferred by the informant. So far as the second aspect which was
involved in the case of Anant Prakash Sinha (supra), is concerned, the
same may have relevance in the instant case but the fact remains that in
the case of Anant Prakash Sinha (supra), such an application was
entertained by the Magistrate and charges were added.
12. So far as the other decision cited by the learned counsel appearing
on behalf of the petitioner is concerned, the legal proposition laid down
therein is not disputed. It is a settled law that singular fact can make a
difference with respect to applicability of a particular decision. The
precedent is an authority for the proposition laid down therein.
13. So far as the application with respect to Section 216 (4) of the
Cr.P.C. for adjournment of the trial is concerned, the same is also
misconceived. A perusal of Section 216 (4) of the Cr.P.C. clearly
indicates that the same is subsequent to a decision of alteration or
addition of charges. It is, therefore, stipulated therein that 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
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aforesaid, the court may either direct a new trial or adjourn for such
period as may be necessary. It is, thus, seen that the stage of sub-section
4 of Section 216 of the Cr.P.C. is subsequent to the decision of alteration
or addition of the charge. In the instant case, no such decision has yet
been rendered by the court concerned. Therefore, the trial court has not
erred in not adjourning the matter till the main application under Section
216 of the Cr.P.C. is decided.
14. A careful perusal of Section 216 of the Cr.P.C. and the scheme of
Chapter XVII of the Cr.P.C. does not indicate that the trial court is
required to pronounce its judgment on charges at multiple stages. Neither
Chapter XVIII nor Chapter XIX of the Cr.P.C. envisages multiple orders
on charges. Once charges are framed, the trial court is to proceed with
the trial for recording evidence as per law and to pass judgment of
acquittal or conviction. The mandate of 216 of the Cr.P.C. is not to
scuttle the process of trial at intermittent stages but to enable the trial
court to see whether it is required to alter or add any charge. This
exercise of altering or adding may not be required in each trial and will
depend upon the facts of individual trial whether such an exercise is
warranted or not. The power under Section 216 of the Cr.P.C. is
exercisable at any time before the judgment is pronounced. For exercise
of such power, no application, oral or written, is necessary, however,
there is no bar if any oral or written request is made but the same is not
necessarily to be dealt with immediately, else the accused or the
complainant at every stage may require the trial court to pass orders. The
same would completely frustrate the purpose of speedy trial and the trial
court would be compelled in deciding the trial in piecemeal.
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15. In view of the aforesaid legal position it is clear that firstly, the
provisions of Section 216 of the Cr.P.C. are enabling and can be
exercised at any stage before pronouncement of the judgment; secondly,
filing of such an application is not required and thirdly, since there is no
bar on filing such an application, therefore, the application can be filed
but it is not necessary to immediately pass an order on receipt of such an
application. It is the duty cast upon the court to apply its mind and if
necessary, alter or add any charge at any time before judgment is
pronounced. Obviously, if such a decision is taken, the concerned court
has to follow the further recourse as mentioned in Section 216 of the
Cr.P.C. itself so as to ensure that no prejudice is caused either to the
accused or the prosecution. The same is not the case here. The trial court
in its discretion at the present stage of trial, does not find it necessary to
alter or add any charge, either on its own or even on an application filed
by the petitioner/prosecutrix. The High Court in exercise of its power
under Section 482 of the Cr.P.C. should not issue any direction for
passing of the order on such an application. Hence, in view of the
aforesaid, this court is of the opinion that the trial court has not
committed any error in proceeding further with the trial without passing
any order on an application under Section 216 of the Cr.P.C.
16. However, looking to the legal position that under Section 216 of
the Cr.P.C., the duty is cast upon the trial court to see that in an
appropriate case, on the basis of sufficient material, it can alter or add
charges, therefore, the trial court is at liberty to consider the application
under Section 216 of the Cr.P.C. at an appropriate stage where it
considers necessary.
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17. In view of the above, the instant petition, along with pending
applications, stands disposed of.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
OCTOBER 11, 2022
priya
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Signing Date:11.10.2022
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