Allahabad High Court
Rekha And 2 Others vs State Of U.P. And Another on 5 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 369
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 19093 of 2020 Applicant :- Rekha And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Birendra Kaushik Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Sri Birendra Kaushik, learned counsel for the applicants and Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-opposite party.
2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 28.08.2020 passed by the Additional Session Judge, Court Room No.3, Mathura, in exercise of powers under Section 216 Cr.P.C., in Session Trial No. 234 of 2016 (State Vs. Smt. Rekha and others) under Section 306 I.P.C. Police Station Jamunapar District Mathura.
3. Briefly stated the facts of the case are that an F.I.R. dated 17.01.2016 was lodged by the opposite party no. 2 against the applicants which was registered as Case Crime No.0012 of 2016 under Sections 147, 148 and 302 I.P.C. at Police Station Jamunapar, District Mathura. After investigation the police submitted a charge-sheet against the applicants under Section 306 I.P.C. on 17.04.2016 and cognizance on the charge-sheet was taken by the Additional Chief Judicial Magistrate, IV, Mathura on 06.05.2016.
4. The statements of the prosecution witnesses were recorded and thereafter an application ( paper no. 68 Kha) was moved by the informant before the court to alter the charge from that under Section 306 to Section 302 I.P.C. The informant contended that the F.I.R. was registered under Sections 147, 148 and 302 I.P.C. and despite sufficient evidence being collected, the charge-sheet was filed by the police only under Section 306 I.P.C. It was contended that the statements of the prosecution witnesses which had been recorded indicated that the charge under Section 302 was also made out and accordingly the application had been filed for altering of the charge.
5. The accused filed their objections (paper no. 74 Kha) seeking to contend that the application filed under Section 216 Cr.P.C. was against the provisions of law and the criminal proceedings had been initiated maliciously with a view to falsely implicate the accused.
6. The trial judge, upon due consideration of the contentions of the parties, the material on record and also the evidence of the prosecution witness, has passed an order under Section 216 Cr.P.C. accepting the application for altering of the charge. Aggrieved against the aforesaid order, the present application under Section 482 Cr.P.C. has been filed by the accused-applicants.
7. The principal contention sought to be raised by the counsel for the applicants is that none of the witnesses produced by the prosecution before the court was an eye witness and as such their statements could not have been relied upon by the trial judge. The other argument raised is that the applicants have been falsely implicated and the proceedings are malicious.
8. Sri Pankaj Saxena, learned A.G.A.-I appearing for the State-opposite party points out that the learned trial judge has duly considered the entire facts and circumstances of the case and the statements of all the prosecution witnesses. He also points out that one of the statements which have been considered by the trial judge is that of P.W. 2 who claims to be an eye-witness and as such the contention of the learned counsel for the petitioner is that none of the statements which have been considered is of an eye-witness is factually incorrect. The other contention which is sought to be raised on behalf of the applicants relates to their defence which may be raised at the appropriate stage before the trial judge and cannot be a ground to challenge the order passed under Section 216 Cr.P.C.
9. Rival contentions now fall for consideration.
10. In order to appreciate the controversy, the relevant provision under Section 216 Cr.P.C. may be adverted to.
"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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
11. The ambit and scope of powers of the trial court to alter the charge under Section 216 Cr.P.C. fell for consideration in P. Kartikalakshmi Vs. Ganesh and another1, wherein it has been held that the power under Section 216 to alter or add any charge at any time before the judgment is pronounced, is exclusive to the Court and there is no right of any party to raise a claim in regard to the same as a matter of right. The observations made in the judgment in this regard are as follows :-
"6....Section 216 Cr.P.C. 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 Cr.P.C. 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 & 222 Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 proceedings and the concept of speedy trial will get jeopardized."
12. The question as to when court can alter or add to any charge while exercising powers under Section 216 Cr.P.C. and also the duty of court while adding/altering charge and the materials which may be considered therefor came up for consideration in Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and another2, and it was held that the court can change or alter the charge if there is defect or something is left out. The test to be applied is that it must be founded on material available on record and the principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with materials produced before him or if subsequent evidence comes on record.
13. Taking into consideration the earlier decisions in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others3, Kantilal Chandulal Mehta Vs. State of Maharashtra4, C.B.I. Vs. Karimullah Osan Khan5, and Jasvinder Saini and others vs. State (Government of NCT of Delhi)6, the following observations were made.
"9. The aforesaid provision has been interpreted in Hasanbhai Valibhai Qureshi, (2004) 5 SCC 347, wherein the Court has observed:-
"Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Session and trial of warrant cases by Magistrates respectively. There is a scope of alteration of the charge during trial on the basis of materials brought on record. Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused."
10. In Hasanbhai Valibhai Qureshi, reference was made to Kantilal Chandulal Mehta v. State of Maharashtra wherein it has been ruled that the Code gives ample power to the courts to alter or amend a charge provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him. Placing reliance on the said decision, it has been opined that if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.
11. In Jasvinder Saini v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256, the charge- sheet was filed before the jurisdictional Magistrate alleging commission of offences under Sections 498-A, 304-B, 406 and 34 IPC against the appellant Nos. 1 to 4 therein. A supplementary charge-sheet was filed in which the appellant Nos. 5 to 8 therein were implicated for the case to which Section 302 IPC was also added by the investigating officer. After the matter was committed to the Court of Session, the trial court came to the conclusion that there was no evidence or material on record to justify framing of a charge under Section 302 IPC, as a result of which charges were framed only under Sections 498-A, 304-B read with Section 34 IPC. When the trial court was proceeding with the matter, this Court delivered the judgment in Rajbir v. State of Haryana and directed that all the trial courts in India to ordinarily add Section 302 to the charge on Section 304-B IPC so that death sentences could be imposed in heinous and barbaric crimes against women. The trial court noted the direction in Rajbir and being duty-bound, added the charge under Section 302 IPC to the one already framed against the appellant therein and further for doing so, it placed reliance on Section 216 CrPC. The said order was assailed before the High Court which opined that the appearance of evidence at the trial was not essential for framing of an additional charge or altering a charge already framed, though it may be one of the grounds to do so. That apart, the High Court referred to the autopsy surgeon's report which, according to the High Court, provided prima facie evidence for framing the charge under Section 302 IPC. Being of this view, it declined to interfere with the order impugned.
12. This Court adverting to the facts held thus : (Jasvinder Saini case, SCC p.262, para 15) "15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case, but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."
It is appropriate to note here, the Court further observed that the annulment of the order passed by the Court would not prevent the trial court from re-examining the question of framing a charge under Section 302 IPC against the appellant therein and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. In that context, reference was made to Hasanbhai Valibhai Qureshi.
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13. In Karimullah Osan Khan, (2014) 11 SCC 538, the Court was concerned with the legality of the order passed by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 for Bomb Blast Case, Greater Bombay rejecting the application filed by the Central Bureau of Investigation (for short "CBI") under Section 216 CrPC for addition of the charges punishable under Section 302 and other charges under the Penal Code and the Explosives Act read with Section 120-B IPC and also under Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The Designated Court framed charges in respect of certain offences and when the CBI filed an application for addition of the charge under Section 302 IPC and other offences, the Designated Court rejected the application as has been indicated earlier. In the said context, the Court proceeded to interpret the scope of Section 216 CrPC. Reference was made to the decisions in Jasvinder Saini (supra) and Thakur Shah v. King Emperor. Proceeding further, it has been ruled thus:-
"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. (See Harihar Chakravarty v. State of W.B.). Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in Section 216 CrPC and other related provisions."
14. A similar view has been taken in Central Bureau of Investigation Vs. Karimullah Osan Khan5, wherein it was held that Section 216 Cr.P.C. gives considerable powers to trial court and that it can alter and add any charge subject to the conditions mentioned therein and that the powers to be exercised are very wide. Referring to the earlier decisions in Thakur Shah vs. Emperor7, Jasvinder Saini and others vs. State (Government of NCT of Delhi)6 and Harihar Chakravarty Vs. State of West Bengal,8 it was stated thus :-
"15. This Court in Jasvinder Saini v. State (Government of NCT of Delhi) (2013) 7 SCC 256, had an occasion to examine the scope of Section 216 CrPC and held as follows:
"11.. 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.
12. In the case at hand the evidence assembled in the course of the investigation and presented to the trial court was not found sufficient to call for framing a charge under Section 302 IPC. ....."
16. The Privy Council, as early as in Thakur Shah v. King Emperor, AIR 1943 PC 192, spoke on alteration or addition of charges as follows :
"The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."
17. Section 216 CrPC gives considerable powers 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. (See Harihar Chakravarty v. State of West Bengal AIR 1954 SC 266). Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in in Section 216 CrPC and other related provisions."
15. The object and the scope of powers to be exercised by the Court under Section 216 Cr.P.C. and the test to be adopted while deciding upon addition or alteration of charge has been considered in a recent judgment in Dr. Nallapareddy Sridhar Reddy Vs. State of Andhra Pradesh and others9, and referring to the earlier precedents in P. Kartikalakshmi Vs. Ganesh and another1, Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and another2, C.B.I. Vs. Karimullah Osan Khan5 and Jasvinder Saini and others vs. State (Government of NCT of Delhi)6 on the point, the principles with regard to the same have been summarized as follows :-
"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. "
16. The provisions of Section 216, whereunder the court is authorised to alter or add to the charge at any time before the judgment is pronounced, find place in Chapter XVII of the Code which relates to "The Charge". The provisions contained under section 216 have been discussed in Dr. Nallapareddy Sridhar Reddy (supra), in the following manner.
"16. Section 216 appears in Chapter XVII of the Code of Criminal Procedure. 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 persecutor 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 of the Code of Criminal Procedure deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial."
17. It is therefore seen that the scope of powers of the court to alter or add any charge under Section 216 Cr.P.C. is very wide in nature and it confers exclusive jurisdiction on the court in regard to such matters which may be exercised at any time before the judgment is pronounced. The rights of the parties in regard to the same would be extremely limited and no addition or alteration or objection with regard thereto, can be raised as a matter of right.
18. In the case at hand, the F.I.R. had been lodged under Sections 147, 148 and 302 IPC and after investigation the charge-sheet was filed under Section 306 I.P.C. After examining the prosecution witnesses upon an application moved on behalf of the informants, the trial court has duly considered the facts and circumstances of the case and the evidence, which was on record, to come to a conclusion that the necessary alteration in the charge was required and accordingly proceeded to allow the application.
19. In view of the settled legal position in case of any omission in framing of the charge if it comes to the knowledge of the court trying the offence, the power to alter the charge under Section 216 Cr.P.C. is always vested in the Court to be exercised at any time before the judgment is pronounced. The section is in the nature of an enabling provision for the Court to exercise its power under certain contingencies when the relevant facts with regard thereto are brought to its notice. In case where a situation so demands if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, the Court may do so on its own or upon an application of the parties.
20. It may be reiterated that the test to be applied in this regard is that it must be founded on material available on record and the principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with materials produced before him or the subsequent evidence which comes on record.
21. The contention relating to the defence of the accused which seeks to impeach the veracity of the depositions made by the prosecution witnesses would be a question to be seen at the trial and need not be determined at the time of framing of charge. The stage of appreciation of evidence on merit by the court comes up only after the charges have been framed and the trial has commenced. For the purpose of framing of charge the court only needs to prima facie determine that there exists sufficient material for the commencement of trial.
22. Counsel for the applicants has not been able to point out any material error or irregularity in the exercise of power under Section 216 Cr.P.C. so as to persuade this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C.
23. The application thus fails and is accordingly dismissed.
Order Date :- 5.2.2021 Pratima (Dr.Y.K.Srivastava,J.)