Allahabad High Court
Sushil Dhameja And Another vs State Of U.P. And Another on 18 April, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 12344 of 2023 Applicant :- Sushil Dhameja And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Sarvesh, learned counsel for the applicants, Sri S.B. Maurya, learned counsel for the State and perused the material brought on record.
3. The present application U/S 482 Cr.P.C. has been filed by the applicants- Sushil Dhameja and Abhishek Singh with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated 04.03.2023 passed by Additional Sessions Judge, Court No.9, Kanpur Nagar by which the charge under Section 63 of Copyright Act has bee framed, in Session Trial No. 971 of 2011, arising out of Case Crime No. 1182 of 2008, under Sections 420, 272, 273 I.P.C., Police Station Kalyanpur, District Kanpur Nagar.
It is further prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the order dated 04.03.2023 passed by Additional Sessions Judge, Court No.9, Kanpur Nagar by which the charge under Section 63 of Copyright Act has bee framed, in Session Trial No. 971 of 2011, during the pendency of the present application before this Hon'ble Court."
4. The facts of the present case are that a first information report was lodged on 15.11.2008 by the S.H.O., Police Station Kalyanpur, District Kanpur Nagar as Case Crime No. 1182 of 2008, under Sections 420, 272, 273 I.P.C. against the applicants alleging therein that it was informed to him through someone that some people are supplying misbranded tobacco after filling it in different packets. The independent witnesses were tried to be taken but no one was ready for it after which the informant along with police personnels reached a house and found two persons shifting packets of tobacco from one place to another. On asking their names they disclosed themselves as Shushil Dhameja and Abhishesh Singh (the applicants). Misbranded and adulterated zarda and tobacco were being prepared. The accused persons disclosed that they prepare zarda in the name of Ratan Brand, Raj Ratan Brand, Jafrani Patti, Kirti Jafrani zarad, Preeti Supar and Chameja Sweet Suprai. 15kg tobacco and 15 packets of Sweet Suprai and packing machine were taken into possession. The matter was investigated and a charge-sheet was filed under Sections 420, 272, 273 I.P.C. after which charges were framed under the said sections. The trial was going on. In the meantime, an application dated 22.02.2023 was filed by the A.D.G.C. (Criminal) u/s 216 Cr.P.C. numbered as Application No. 80 Kha with the prayer that charges u/s 60 & 65 of the Copyright Act be also framed against the applicants. The said application was heard by the concerned trial court and was allowed vide order dated 04.03.2023 and the matter was placed for framing charge u/s 63 of the Copyright Act. Subsequently charge u/s 63 of the Copyright Act was framed by the Additional District & Sessions Judge, Court No.9, Kanpur Nagar vide order dated 04.03.2023. The present petition has thus been filed before this Court.
5. Learned counsel for the applicants argued that moving of the application u/s 216 Cr.P.C. is clearly an abuse of process of law & court in as much as the occurrence in the present case is allegedly of 15.11.2008 and the said application has been moved after about 15 years of the alleged incident without any basis. It is argued that there was no change of circumstances in as much as the trial of the case was nearing completion and at that stage the application u/s 216 Cr.P.C. has been moved on behalf of the prosecution. It is argued that the order dated 04.03.2023 is patently illegal and without any substance. The same has been passed mechanically and without any legal evidence against the applicants.It is argued that the Investigating Officer did not collect any evidence with regards to any offence under the Copyright Act. It is argued that as such the said order be set-aside.
6. Per contra, learned counsel for the State opposed the prayer for quashing.
7. After hearing the learned counsel for the parties and perusing the records, it is evident that on an application moved u/s 216 Cr.P.C. dated 22.02.2023 by the prosecution the trial court allowed the same and observed that charge u/s 63 of the Copyright Act deserves to be framed and subsequently framed the same.
8. The law with regards to Section 216 Cr.P.C. is trite as has been held by the Apex Court in the case of Hasanbhai Valibhai Qureshi vs. State of Gujarat and others: (2004) 5 SCC 347, the Hon'ble Apex Court, while dealing with scope of Section 216 Cr.P.C., in paragraph No.10 has held as under:-
"10. Therefore, 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."
9. Further the Apex Court in the case of P. Kartikalakshmi vs. Sri Ganesh and another: (2017) 3 SCC 347 in paragraph 6, 7 and 8 has held as under:-
"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 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 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 proceedings and the concept of speedy trial will get jeopardised.
8. In such circumstances, when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC. Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the court below."
(emphasis supplied)
10. Having regard to the facts of the matter and the settled legal position, the impugned orders dated 04.03.2023 are unsustainable and deserve to be quashed and the same are hereby quashed.
11. The trial court shall be at liberty to pass appropriate order keeping in view the provisions contained in Section 216 Cr.P.C. on its own instance and keeping in view the observations made herein-above after giving liberty of hearing to all the concerned parties.
12. With the above observations, the present application u/s 482 Cr.P.C. stands disposed of.
Order Date :- 18.4.2023 AS Rathore (Samit Gopal,J.)