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Showing contexts for: under section 216 criminal procedure code in P. Kartikalakshmi vs Sri Ganesh on 12 August, 2014Matching Fragments
The Trial Court by its order dated 10.12.2012 having declined to countenance the prayer of the appellant, a revision came to be filed under Section 397 Cr.P.C. before the High Court, wherein the impugned order came to be passed. The learned Judge took the view, in so far as the claim of the appellant, for framing an additional charge under Section 216 Cr.P.C. to the effect that it is not for the accused nor for the complainant to apply and seek for such a prayer before the Trial Court. The High Court while dealing with the question as to the maintainability of the revision held that 18:25:07 IST Reason:
the revision was maintainable.1
On the above issues, we heard Mr. Nagendra Rai, learned senior counsel appearing for the appellant, and Mr. A. Ramesh, learned senior counsel for respondent no.1. Mr. Rai, in his submission, contended that in the F.I.R. there was a charge noted under Section 417 I.P.C., that ultimately when the charge came to be framed against respondent no.1, it was confined to Section 376 I.P.C. and, therefore, in the light of the power vested in the Trial Court under Section 216 Cr.P.C., the appellant was well justified in seeking for a prayer for addition of the charge under Section 417 I.P.C. Learned senior counsel for the appellant also contended that when the Trial Court in its order dated 10.12.2012 having rejected the said prayer once and for all, the appellant had no other remedy except to invoke the revisional jurisdiction of the High Court. It is contended that the conclusion of the High Court in having held that revision was maintainable was therefore justified. Learned senior counsel contended that it was at the initiation of the complainant, the case came to be launched by the prosecution, that the complaint disclosed the ingredients of the offences under Sections 417 and 376 I.P.C. and when in the F.I.R., the said offence under Section 417 I.P.C. was also noted, the appellant was well justified in seeking for addition of the said charge, more so, when the required power was available with the Trial Court under Section 216 Cr.P.C. Reliance was placed upon the decision rendered in Pratap v. State of U.P. & Others, reported in (1973) 3 SCC 690.
That apart, learned senior counsel further contended that there was no right in the party before the Trial Court to seek for any order to be passed under Section 216 Cr.P.C. as a matter of right either for addition or alteration of the charge and the power only vests with the Court and, therefore, the invocation of Section 397 Cr.P.C. itself was not available to the appellant to question the action of the Trial Court. Learned senior counsel, therefore, contended that the conclusion of the learned Judge in the order impugned in having held that the revision was maintainable was not the correct legal position. Learned senior counsel relied upon the decision in Thakur Ram & Others v. State of Bihar, reported in AIR 1966 SC 911, in support of his submission, and submitted that the power available under Section 216 Cr.P.C. can be exercised only by the Court on its own and no party has any right to seek for passing any orders under the said provision.
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 Cr.P.C. Therefore, there was no question of the said order being revisable under Section 397 Cr.P.C. 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 Cr.P.C. 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 no.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.