Amrinder Pal Singh vs State Of Punjab And Another
2022 Latest Caselaw 16723 P&H

                                      IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                    AT CHANDIGARH

                                                              CRM-M-19269-2020
                                                              Date of Decision: 14.12.2022

                 Amrinder Pal Singh                                                  ...Petitioner
                                                           Versus

                 State of Punjab and Another                                      ...Respondents


                 Coram: HON'BLE MR. JUSTICE JAGMOHAN BANSAL

                 Present:-               Mr. Deepak Sabharwal, Advocate
                                        for the petitioner.

                                        Mr. Amish Sharma, AAG, Punjab

                                        Mr. Umesh Aggarwal, Advocate,
                                        for respondent No.2

                        ****
                 JAGMOHAN BANSAL, J. (ORAL)

1. Through instant petition under Section 482 of Criminal

Procedure Code, the petitioner is seeking setting aside of order dated

07.03.2020 (Annexure P-5) whereby the application of the prosecution

for amendment of charge has been allowed.

2. The brief facts which are material and necessary for

adjudication of present dispute are that on the complaint of Dalbir

Singh, an FIR No.302 dated 10.09.2011 came to be registered against

petitioner and his sister. The FIR was registered under Section 420,

467, 468, 471 of IPC. The police after completing investigation filed its

final report under Section 173 Cr.P.C. The matter came up for

consideration before Chief Judicial Magistrate, Amritsar who vide order

dated 17.12.2013 (Annexure P-2) framed charges. For the ready

reference, charge sheet is reproduced as below:

"1. That on or before 10.9.11, in the area of court HDFC MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and Bank Mall Road, Asr you accused named above authenticity of this order/judgment

dishonestly cheated the complainant Dalbir Singh's daughter Gurbir Kaur by delivering her to forged Driving Licence and forged rent note and obtained the signatures of Gurbir Kaur on cheque and form and demanded Rs three lac on pretext of getting a job in the bank and thus you accused committed an offence punishable under section 420 IPC which is within my cognizance.

2. 2ndly, on the same date time and place, you obtained DL and rent note for providing job to Gurbir Kaur in the bank which are a valuable documents in order to cheat the complainant and thus you accused committed an offence punishable under Section 467 IPC which is within my cognizance.

3. 3rdly, on the same date time and place, you obtained DL and rent note for providing job to Gurbir Kaur in the bank which being a valuable document for the purpose of cheating and thus committed an offence punishable under section 468 IPC which is within my cognizance.

4. 4thly, on the same date and place, you accused obtained DL and rent note for providing job to Gurbir Kaur in the bank which are a valuable document and cheated the complainant by using the said document to be genuine and thus you both the accused committed an offence punishable under section 471 IPC which is within my cognizance which is within my cognizance."

3. The prosecution during the course of trial, led its evidence.

The prosecution examined 11 witnesses and after completion of

prosecution evidence, statement of petitioner under Section 313 was

recorded on 25.09.2019. The present petitioner examined one witness

as DW-1 on 18.12.2019. The matter was fixed for final arguments on

27.02.2020 and at this stage, the prosecution moved an application

MOHIT KUMAR 2022.12.14 16:51 dated 27.02.2020 seeking amendment of charge sheet on the ground I attest to the accuracy and authenticity of this order/judgment

that charge sheet is not in consonance with the FIR. The present

petitioner filed its reply contesting the application seeking amendment

of charge sheet.

4. Learned trial Court, vide order dated 07.03.2020 allowed

application of the prosecution and vide order dated 09.03.2020 framed

fresh charge sheet. Relevant extracts of charge sheet dated

09.03.2020 are reproduced as below:

"1. That on or before 10.09.2011, you accused above named cheated Gurbir Kaur daughter of complainant Dalbir Singh by obtaining her signatures on some account opening form and cheques on the pretext of confirmation of your job in Kotak Mahindra Bank but thereafter issued legal notice demanding Rs. Three lac from Gurbir Kaur on the basis of aforesaid cheques and thereby you committed an offence punishable u/s 420 of IPC and within cognizance of this court.

2. Secondly on or before 10.09.2011, you accused above named forged driving license and rent note purported to be valuable securities in the name of Gurbir Kaur showing her as to be your wife and thus you accused committed an offence punishable u/s 467 of IPC and within cognizance of this court.

3. Thirdly on the same date and time, you accused forged driving license and rent note in the name of Gurbir Kaur intending that they shall be used for the purpose of cheating and thus committed an offence punishable u/s 468 of IPC and within cognizance of this court.

4. Fourthly on the same date and time and place you accused used as genuine driving license and rent note in the name of Gurbir Kaur forged by you which you knew at the time of their use that they were forged documents and thereby an offence punishable u/s 471 of IPC and within MOHIT KUMAR 2022.12.14 16:51 cognizance of this Court."

I attest to the accuracy and authenticity of this order/judgment

5. Mr. Deepak Sabarwal, learned counsel for the petitioner

would submit that fresh charge sheet is entirely different from earlier

charge sheet. From the bare perusal of both the charge sheets, it is

quite evident that prosecution had made out a totally different story.

The prosecution led its witnesses and thereafter, petitioner led his

defence witness. After closing of evidence of both sides, the

prosecution had moved application seeking amendment of charge

sheet which amounts to commencement of trial from initial stage. The

prosecution in support of its case examined 11 witnesses who in view

of charge sheet dated 17.12.2013, were cross-examined by the

petitioner. The amendment of charge sheet amounts to filling up of

lacuna. The FIR was registered on 10.09.2011 and fresh charge sheet

has been issued on 07.03.2020. The petitioner has already suffered

mental agony of about 9 years and if fresh charge sheet is issued at

this belated stage, it amounts to not only violation of mandate of

Section 216 of Cr.P.C. but also fundamental right of speedy trial

guaranteed under Article 21 of the Constitution of India.

6. Learned State counsel as well learned counsel for

respondent No.2 submit that fresh charge sheet is in consonance with

the FIR. The allegation and averments made in the FIR are parimateria

with charge sheet dated 09.03.2020. If charges are not amended, it

would prejudice interest of the prosecution as well as complainant.

They further submit that they have no objection if petitioner is permitted

to lead his evidence afresh.

MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and authenticity of this order/judgment

7. Before dwelling into issue involved and adjudication

thereof, it is inevitable to look at Section 216 of Cr.P.C. which is

reproduced as 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 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."

8. A two judge of Hon'ble Supreme Court in P.

Kartikalakshmi V. Sri Ganesh; 2017 (3) SCC 347 while adverting

with intent and scope of Section 216 has held:

"6.Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent 1. Section 216 CrPC empowers the Court to alter or add any charge at any time MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and before the judgment is pronounced. It is now well settled authenticity of this order/judgment

that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It 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 need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

7. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 CrPC is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and authenticity of this order/judgment

proceedings and the concept of speedy trial will get jeopardized."

9. From the conspectus of above quoted Section 216 and

judgment of Hon'ble Supreme Court, it can be gleaned that court is

endowed with power to 'alter' or 'add' charge at any time before

pronouncement of judgment. The power is exclusively vested in the

trial court and neither prosecution nor accused can claim alteration or

addition of charge as matter of right. The court is vested with wide and

pervasive power to 'alter' or 'add' the charge sheet prior to

pronouncement of the judgment, however, court cannot make out a

new case i.e. change pith & substance or heart & soul of charge sheet.

This discretionary power cannot be comprehended to include power to

make out a totally new case. It is settled principles of law that where

there is discretion, it cannot be exercised in an arbitrary and whimsical

manner and it ought to be exercised with full circumspection and in a

judicious manner. Existence of power and exercise of power are two

different facets of administration of justice. In the absence of existence,

either executive or judiciary cannot exercise power but where power

exists, it must be exercised in just, fair and right manner. Exercise of

power in an arbitrary manner is always antithesis to fundamental

principles of law and it is anathema to rule of law which in turn is

foundation of right of equality guaranteed by Article 14 and right to life

and personal liberty guaranteed by Article 21 of the Constitution of

India.

It is settled proposition of law that speedy trial is part of

right of equality as well as life and personal liberty enshrined in Articles

14 & 21 of the Constitution of India.

MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and authenticity of this order/judgment

10. FIR is foundation of commencement of investigation which

concludes with filing of police report and charge sheet is foundation of

trial which concludes with judgment of conviction or acquittal. The

charges are framed to inform the accused that as per prosecution and

trial court, prima facie, he is involved in commission of an offence

disclosed in the charge sheet and he has to lead his defence

accordingly.

Addition or alteration of charge may or may not prejudice

the accused. In case, alteration or addition of charge prejudices the

accused, court may either direct a new trial or adjourn the trial for such

period as may be necessary.

11. In the case in hand, the trial Court framed charges under

different Sections of IPC. The basis of invoking different provisions of

IPC, were disclosed in the form of narration. In the charge sheet mere

provisions of statute violated are not disclosed whereas narration

which forms foundation of allegation of violation of law is also

disclosed.

In the charge sheet dated 17.12.2013, the charges were

framed under Sections 420, 467, 468, 471 of IPC and in the impugned

charge sheet dated 09.03.2020 charges are framed under Sections

420, 467, 468, 471 of IPC. From the perusal of both charge sheets, it is

evident that there is no change qua provision of IPC invoked, however,

there is an entirely new case qua foundation of sections invoked. The

prosecution has come out with a new set of story.

FIR was registered on 10.09.2011, charges were framed MOHIT KUMAR 2022.12.14 16:51 on 17.12.2013, the prosecution concluded its evidence and statement I attest to the accuracy and authenticity of this order/judgment

of accused under Section 313 Cr.P.C. was recorded on 25.09.2019,

accused concluded its evidence on 18.12.2019, the matter was fixed

for argument on 27.02.2020 and on this date an application for

amendment of charge sheet came to be moved. The respondents did

not seek amendment on the basis of evidence which had come on

record at a later stage whereas the prosecution claimed and even

before this court is claiming that while framing charges there was

mistake in narration of facts and allegations.

12. Keeping in mind:

                                      (i)     FIR was registered on 10.09.2011;

                                      (ii)    Charges were framed on 17.12.2013 i.e. 7 years prior

to filing application seeking amendment of charge

sheet;

(iii) Prosecution and defence had closed it evidence on

18.12.2019;

(iv) Prosecution moved application at the stage when

matter was listed for final argument;

(v) Prosecution wants to rest foundation of its case on a

totally new set of allegations which rather 'addition' or

'alteration' amounts to making of new charge;

(vi) Impugned order has been passed on the application

filed by prosecution and it is not a case where court

its own has ordered to frame fresh charge sheet;

(vii) No new evidence had come on record which

compelled the trial court to pass impugned order; MOHIT KUMAR 2022.12.14 16:51 I attest to the accuracy and authenticity of this order/judgment

this Court finds that it would not be in the fitness of things,

interest of justice and principles of just, fair and speedy trial, if

impugned order is allowed to stand. The present petition deserves to

be allowed and accordingly allowed. Order dated 07.03.2020

(Annexure P-5) passed by CJM, Amritsar is hereby quashed.

                                                                          (JAGMOHAN BANSAL)
                                                                                 JUDGE

                 14.12.2022
                 Mohit Kumar

                                       Whether speaking/reasoned         Yes/No
                                       Whether reportable                Yes/No




MOHIT KUMAR
2022.12.14 16:51
I attest to the accuracy and
authenticity of this order/judgment