Allahabad High Court
Mukeem @ Mukeem Sheikh vs State Of U.P. Prin.Secy. Home Civil ... on 12 July, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:47461 Court No. - 13 Case :- APPLICATION U/S 482 No. - 6145 of 2024 Applicant :- Mukeem @ Mukeem Sheikh Opposite Party :- State Of U.P. Prin.Secy. Home Civil Secrt. Lko. And Another Counsel for Applicant :- Vinay Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Heard Sri Vinay Kumar Tiwari, learned counsel for the applicant and Sri Nirmal Kumar Pandey, learned AGA for the State of U.P. as well as perused the record.
By means of this application under Section 482 Cr.P.C. read with Section 528 Bharatiya Nagrik Suraksha Sanhita (in short "BNSS"), the applicant has assailed the order dated 05.03.2024 passed in Sessions Trial No. 245 of 2021 (State vs. Shahrukh Khan and others) arising out of Case Crime No. 80 of 2020, under Sections- 323, 323, 504, 304, 316 IPC, Police Station- Paraspur, District- Gonda.
Facts, in brief, of the present case are to the effect that on 18.04.2021, an N.C.R. No. 106 of 2020, under Sections 323 and 504 was lodged at Police Station- Paraspur, District- Gonda and later on, this N.C.R. was converted into FIR/Case Crime No. 80 of 2020, under Sections- 323, 325, 504 IPC.
The alteration/conversion aforesaid was on account of injuries sustained by Smt. Amina/mother of opposite party No. 2 in the incident in relation to which, the above indicated N.C.R. No. 106 of 2020 was lodged in which one Sabiunnisha/wife of opposite party No. 2, who was carrying pregnancy of about 28 weeks at that point of time, also sustained injures, on account of which, she died on 19.04.2020 and therefore, Sections- 304, 316 IPC were also added in the aforesaid FIR.
On completion of investigation, the Investigating Officer submitted charge sheet under Sections- 323, 504, 325, 188 IPC on 18.07.2020.
Thereafter, on 10.08.2021, the case was committed for trial to sessions court where the case was registered as Sessions Trial No. 245 of 2021 (State vs. Shahrukh Khan and others).
The trial court based upon the charge sheet framed the charges under Sections- 323/34, 325/34, 504, 188 IPC on 10.08.2021.
It would be apt to indicate here that the applicant is on bail under Sections- 323/34, 325/34, 504, 188 IPC.
After the aforesaid, injured/Smt. Amina, whose hand was fractured in the alleged occurrence, was duly examined and cross-examined and prior to her statement, the informant/Rafique was examined and cross-examined.
In their statements, both the witnesses of fact namely Rafique/PW-1 and Smt. Amina/PW-2 specifically stated, as appears from the record, that the applicant/Mukeem @ Mukeem Sheikh and one Azad caused injury to injured/Smt. Amina/mother of applicant and deceased/Sabiunnisha/wife of the applicant.
Thereafter, based upon the statements of PW-1 and PW-2, the prosecution moved an application under Section 216 Cr.P.C. for altering/adding the charge under Sections- 304, 316 IPC, which was allowed by the trial court vide order under challenge dated 05.03.2024.
In these circumstances, the present application under Section 482 Cr.P.C. has been filed before this Court challenging the order dated 05.03.2024.
Learned counsel for the applicant says that the charge, if required, in the aforesaid section(s) could have been altered by the trial court after recording of statements of all the witnesses of fact, as indicated in the charge sheet, and accordingly, in altering the charges, only based upon the statements of PW-1 and PW-2, the trial court committed error of law in exercising the power under Section 216 Cr.P.C.
He also says that as per the statement(s) recorded before the Investigating Officer, the applicant has not committed any crime.
It is also submitted by the learned counsel for the applicant that as per the statements recorded by the Investigating Officer during enquiry, deceased/Sabiunnisha was assaulted by Shahrukh Khan and Salman and ignoring this aspect of the case, the trial court committed error of law while passing the order under challenge dated 05.03.2024.
Learned AGA opposed the present application. He says that in view of language couched under Section 216 Cr.P.C., the trial court is empowered to alter/add charge at any stage of the proceedings, as such, the trial court has not committed any illegality in passing the order impugned dated 05.03.2024, as specific allegations have been levelled against the applicant by PW-1 and PW-2. He says that PW-2/Smt. Amina is the injured witness and as per settled view, primacy should be given to the testimony of injured witness, as such, no illegality has been committed by the trial court while passing the order under challenge dated 05.03.2024.
Considered the aforesaid and perused the record.
In order to deal with the controversy involved in this case, this Court feels it appropriate to take note of the judgment passed by the Hon'ble Apex Court in the case of Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh and others reported in (2020) 12 SCC 467. In this case, an application under Section 216 Cr.P.C. was filed by the Public Prosecutor before the trial court for framing additional charges under Section 406 and 420 IPC. This application was rejected by the trial court and the order of the trial court was challenged. The High Court interfered in the order of trial court and directed the trial court to frame charges under Sections 406 and 420 IPC. The order of the High Court was challenged before the Hon'ble Apex Court. The Hon'ble Apex Court after considering Section 216 Cr.P.C. and various pronouncements dismissed the appeal. The relevant paragraphs of this report are extracted hereinunder:-
"15.In order to adjudicate upon the dispute, it is necessary to refer to Section 216 CrPC:
"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."
16.Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase "add to any charge" in sub-section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done "at any time before judgment is pronounced". Sub-section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the prosecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub-section (4) 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 CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.
17.The decision of a two-Judge Bench of this Court inP. Kartikalakshmiv.Sri Ganesh[P. Kartikalakshmiv.Sri Ganesh, (2017) 3 SCC 347 : (2017) 2 SCC (Cri) 84] , dealt with a case where during the course of a trial for an offence under Section 376 IPC, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 IPC. F.M. Ibrahim Kalifulla, J. while dealing with the power of the court to alter or add any charge, held : (SCC p. 350, para 6) "6. ? Section 216 CrPC empowers the court to alter or add any charge at any time before the judgment is pronounced. It is now well settled 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 ownand 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."
(emphasis supplied)
18.InAnant Prakash Sinhav.State of Haryana[Anant Prakash Sinhav.State of Haryana, (2016) 6 SCC 105 : (2016) 2 SCC (Cri) 525] , a two-Judge Bench of this Court dealt with a situation where for commission of offences under Sections 498-A and 323 IPC, an application was filed for framing an additional charge under Section 406 IPC against the husband and the mother-in-law. After referring to various decisions of this Court that dealt with the power of the court to alter a charge, Dipak Misra, J. (as the learned Chief Justice then was), held : (SCC p. 116, paras 18-19) "18. ? 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 CrPC.
19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial."
(emphasis supplied)
19.InCBIv.Karimullah Osan Khan[CBIv.Karimullah Osan Khan, (2014) 11 SCC 538 : (2014) 3 SCC (Cri) 437] , this Court dealt with a case where an application was filed under Section 216 CrPC during the course of trial for addition of charges against the appellant under various provisions of IPC, the Explosives Act, 1884 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. K.S.P. Radhakrishnan, J. speaking for the Court, held thus : (SCC p. 546, paras 17-18) "17.Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub-sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration.Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court."
(emphasis supplied)
20.InJasvinder Sainiv.State (NCT of Delhi)[Jasvinder Sainiv.State (NCT of Delhi), (2013) 7 SCC 256 : (2013) 3 SCC (Cri) 295] , this Court dealt with the question whether the trial court was justified in adding a charge under Section 302 IPC against the accused persons who were charged under Section 304-B IPC. T.S. Thakur, J. (as he then was) speaking for the Court, held thus : (SCC pp. 260-61, para 11) "11.A plain reading of the above would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment.The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court."
(emphasis supplied)
21.From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words "at any time before judgment is pronounced" in sub-section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges. The court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the court's power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Sub-section (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused.
22.The appellant has relied upon a two-Judge Bench decision of this Court inOnkar Nath Mishrav.State (NCT of Delhi)[Onkar Nath Mishrav.State (NCT of Delhi), (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] to substantiate the point that the ingredients of Sections 406 and 420 IPC have not been established. This Court while dealing with the nature of evaluation by a court at the stage of framing of charge, held thus : (SCC p. 565, para 11) "11.It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record.What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
(emphasis supplied)
23.In the present case, the High Court while directing the framing of the additional charges has evaluated the material and evidence brought on record after investigation and held:
"LW 1 is the father of the de facto complainant, who states that his son-in-law i.e. the first accused promised that he would look after his daughter at United Kingdom (UK) and promised to provide doctor's job at UK and claimed Rs 5 lakhs for the said purpose and received the same and he took his daughter to the UK. He states that his son-in-law made him believe and received Rs 5 lakhs in the presence of elders. He states that he could not mention about the cheating done by his son-in-law, when he was examined earlier. LW 13, who is an independent witness, also supports the version of LW 1 and states that Rs 5 lakhs were received by A-1 with a promise that he would secure doctor job to the complainant's daughter. He states that A-1 cheated LW 1, stating that he would provide job and received Rs 5 lakhs. LW 14, also is an independent witness and he supported the version of LW 13. He further states that A-1 left his wife and child in India and went away after receiving Rs 5 lakhs.
Hence, from the above facts, stated by LWs 13 and 14, prima facie, the version of LW 1 that he gave Rs 5 lakhs to A-1 on a promise that he would provide a job to his daughter and that A-1 did not provide any job and cheated him, receives support from LWs 13 and 14.When the amount is entrusted to A-1, with a promise to provide a job and when he fails to provide the job and does not return the amount, it can be made out that A-1 did not have any intention to provide job to his wife and that he utilised the amount for a purpose other than the purpose for which he collected the amount from LW 1, which would suffice to attract the offences under Sections 406 and 420 IPC. Whether there is truth in the improved version of LW 1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial.
It is also evident from the record that the additional charge-sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed."
(emphasis supplied)
24.The test adopted by the High Court is correct and in accordance with decisions of this Court. In the counter-affidavit filed by the fourth respondent before this Court, depositions of PW 1 (LW 1), PW 5 (LW 12) and PW 6 (LW 13) and their cross-examination have been annexed. The material on record supports the possibility that in April 2006, the appellant demanded Rs 5,00,000 from PW 1, who is the complainant, in order to secure a doctor's job for the complainant's daughter in the United Kingdom. According to PW 1, he borrowed the amount from PW 5 (brother-in-law of PW 1) and paid it to the appellant in the presence of PW 5 and PW 6 (friend of PW 1). Without pronouncing on the probative value of such evidence, there exists sufficient material on record that shows a connection or link with the ingredients of the offences under Sections 406 and 420 IPC, and the charges sought to be added.
25.The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."
Upon due consideration of the aforesaid observations of the Hon'ble Apex Court in the case of Dr. Nallapareddy Sridhar Reddy (supra) and the principles in regard to considering/appreciating the statement/evidence of injured witness as also the specific allegations levelled by the injured witness/Smt. Amina (PW-2) against the accused/applicant, this Court is of the view that in passing the order dated 05.03.2024, under challenge, the trial court has not committed any illegality or irregularity and accordingly, this Court finds no force in this application. It is therefore dismissed.
Order Date :- 12.7.2024 Arun/-