Punjab-Haryana High Court
Sanjay vs State Of Haryana on 26 October, 2021
CRR-1063-2021 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CRR No.1063 of 2021 (O&M)
Date of Decision: October 26 , 2021
Sanjay
...Petitioner
Versus
State of Haryana
...Respondents
CORAM:- HON'BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Munish Behl, Advocate
for the petitioner.
Ms. Deepshikha Chauhan, AAG Haryana.
********
JAISHREE THAKUR, J. (Oral)
1. The petitioner herein is seeking to challenge the additional
charge framed against him under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 ('the POCSO Act' for short).
2. In brief the facts as stated are, that a complaint was filed by the
mother of the prosecutrix on 13.06.2019 to the effect that her minor
daughter aged 17 years went missing from the house and she suspects that
Sanjay Kumar alias Biru has enticed her with an intention to marry. A Zero
FIR number dated 13.6.2019 was registered under Sections 363, 366, 120-B
IPC at Police Station Yamuna Nagar. The statement of the prosecutrix was
recorded u/s 164 Cr.P.C on 19.6.2019. The matter was investigated and
charges were framed by the Additional Sessions Judge, Ambala, under
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Sections 363, 366A IPC read with Section 12 of the POCSO Act and
Section 9 of Prohibition of Child Marriage Act. The prosecutrix in her
examination-in-chief stated that the petitioner accused had committed rape
upon her. Based on the statement, an application under section 216 Cr.P.C
was filed for alteration of charge. The said application was contested by the
petitioner herein, however, the Additional Session Judge amended the
charges framed and added Section 6 of the POCSO Act. Aggrieved against
the said order, the instant petition has been filed.
3. The petitioner challenges the impugned order by contending
that the prosecutrix left her home of her own accord and had solemnised a
marriage on 13.6.2019 with the petitioner. As the family members of the
prosecutrix did not given their consent, a false case was registered against
the petitioner and his family members. It is submitted that the petitioner and
the prosecutrix had approached this High Court by way of filing CWP
No.16883 of 2019 seeking protection of their life and liberty from the
family members of the prosecutrix, which petition was disposed of with a
direction to Senior Superintendent of Police, Yamuna Nagar to ensure
protection of life and liberty of the prosecutrix as well as the petitioner. The
prosecutrix by affidavit in support of the writ petition filed seeking
protection, submitted her age as 19 years, and therefore, she was an adult
on the date she solemnised her marriage with the petitioner. It is argued that
in her statement recorded under Section 164 Cr.P.C., there is no mention
that the petitioner had committed the offence of rape upon her. Rather, she
stated that she had solemnized marriage with the petitioner of her free will
and had also obtained protection order. It is also submitted that the
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prosecutrix had denied getting physical examination, therefore, there is no
material on the record to substantiate the fact that the offence of rape was
committed upon the prosecutrix. The challan was presented only against the
petitioner, even though his family members had been nominated as an
accused in the said FIR. It is argued that once a statement had been given
by the prosecutrix under Section 164 Cr.P.C, that she had got married and
there was no allegation of offence of rape, then there would be no occasion
to charge the petitioner under Section 6 of the POCSO Act. The counsel
would also lay great stress on the fact that the amended charge was not read
out to him as mandated under section 216 (2) Cr.P.C.
4. Per contra, Ms. Deepshikha Chauhan, AAG Haryana, would
rely upon order dated 02.03.2021 passed by the court below where the
charge was read out and explained to him. It is submitted that the amended
charge was read over to the accused to which he pleaded not guilty and
claimed trial. It is argued that on the reading of Section 216 Cr.P.C., it is
clear that such an application can be moved at any stage of the trial and the
present application was moved promptly when it was brought forward that
rape had been committed upon the prosecutrix by the accused.
5. I have heard learned counsel for the parties and have gone
through the pleadings of the case.
6. Section 216 of Cr.P.C. 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.
(2) Every such alteration or addition shall be read and
explained to the accused.
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(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 has been already obtained for a
prosecution on the same facts as those on which the altered or
added charge is founded.
Sub-section (1) of Section 216 Cr.P.C. which falls under
Chapter-XVII provides that any Court may alter or add to any charge at any
time before judgment is pronounced. Whenever such an alteration or
addition is made, it is to be read out and explained to the accused. Section
216 of the Code empowers all criminal courts including Judicial
Magistrate's Court, Session's Court and even High Court to alter the
charges levelled against the accused, if the court finds that there is a need to
alter charge due to certain event, incident or circumstances. In the matter of
Dr. Nallapareddy Sridhar Reddy vs. The State of Andhra Pradesh &
Ors, Criminal Appeal No. 1934 of 2019, the Hon'ble Supreme Court has
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allowed the amendment of a charge even after the judgment stood reserved,
since the words used in the statue is that amendment can be allowed at any
time before judgment is pronounced.
7. The Hon'ble Supreme Court in the case of Anant Prakash
Sinha alias Anant Sinha vs. State of Haryana & Anr. AIR 2016 SC
1197, after considering many of its previous decisions has held that:
"16. The court can change or alter the charge if there is
defect or something is left out. The test is, it must be
founded on the material available on record. It can be on
the basis of the complaint or the FIR or accompanying
documents or the material brought on record during the
course of trial. It can also be done at any time before
pronouncement of judgment. It is not necessary to advert to
each and every circumstance. Suffice it to say, if the court
has not framed a charge despite the material on record, it
has the jurisdiction to add a charge. Similarly, it has the
authority to alter the charge. The principle that has to be
kept in mind is that the charge so framed by the Magistrate
is in accord with the materials produced before him or if
subsequent evidence comes on record. It is not to be
understood that unless evidence has been let in, charges
already framed cannot be altered, for that is not the
purport of Section 216 Cr.P.C."
8. In the case in hand, the petitioner was charged with Sections
363, 366A of IPC read with Section 12 of the POCSO Act and Section 9 of
Prohibition of Child Marriage Act vide order dated 23.10.2019. The
prosecutrix stepped into the witness box and categorically stated that she
had been raped by the petitioner, which offence would not be covered under
Section 12 of the POCSO Act, which only pertains to sexual harassment,
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whereas, in the allegation of having committed the offence of rape, the
petitioner would be charged under Section 4/6 of the POCSO Act. The
charge is to be framed by the court based on the material before it and if a
statement is given that an offence has been committed, the said statement of
the victim cannot be outrightly dismissed. The allegation of rape is serious
in nature and would have to be considered. The argument addressed that
there is no medical report available on the record to establish the fact of
rape, would be a plea taken at the time of the petitioner's defence.
9. The application for amendment of charge was moved
immediately by the prosecution when the statement was given by the victim
that she had been raped by the petitioner. Faced with the statement and the
material before it, the court framed the charge. As held in Dr.
Nallapareddy Sridhar Reddy Versus The State of Andhra Pradesh &
Ors (Supra) "At the time of framing of charge, it is sufficient if the court is
able to form a presumption regarding the existence of ingredients
constituting the offence found upon the material placed before it. It is not
necessary for the court to undertake an analysis of the credibility, veracity
orevidentiary value of the materials placed before it (Sajjan Kumar vs
Central Bureau of Investigation)."
10. The second contention raised that there was non-compliance of
Section 216(2) Cr.P.C., insofar as the amended charge was not read out to
the petitioner does not have merit. The date on which the application for
amendment of charge was allowed by the trial court i.e. on 02.03.2021, the
amended charge was read out to him and he did not plead guilty to the same
and claimed the trial. Even the application filed for amendment was duly
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contested.
11. Consequently, this court finds no infirmity or illegality in the
impugned order framing additional charge by the trial court. Accordingly,
the instant criminal revision petition is hereby dismissed.
(JAISHREE THAKUR)
October 26 , 2021 JUDGE
vijay saini
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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