Dismissed

Rakesh Kumar v. State of U.P. and Another

Allahabad HC3 Aug 2023A482/18292/2023

Case brief

AI extract

What is this about?

This Single Judge Court rejected an application under Section 482 Cr.P.C. seeking to discharge the applicant and alter charges. The Court held that a discharge application under Section 227 Cr.P.C. was not maintainable post-framing of charges and that the trial court correctly rejected the alteration application.

What did the court decide?

The instant application U/s 482 Cr.P.C. was dismissed as it was misconceived and devoid of merits.

Rakesh Kumar Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:155609

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 18292 of 2023

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Applicant :- Rakesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Saurabh Tripathi,Sohit Prakash Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present applicant has invoked the inherent power of this Court under Section 482 Cr.P.C. to quash the order dated 11.4.2023 passed by the Additional Sessions Judge, Court No.6, Aligarh, rejecting the application No.15Kha moved under Sections 216 and 227 Cr.P.C., in Session Trial No.1007 of 2021 (State Vs. Rakesh Kumar and others), arising out of Case Crime No.240 of 2019, under Sections 323, 504 and 308 IPC, Police Station Chharra, District Aligarh.

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Facts culled out from the averments as made in the application are that with respect to the incident allegedly took place on 14.7.2019, at about 8:00 PM, an NCR No.34 of 2019 has been registered on 27.7.2019, under Sections 323, 504 IPC. On the basis of the order passed by the Court under Section 155(2) Cr.P.C., the said NCR has been converted into an FIR, being Case Crime No.0240 of 2019 dated 28.9.2019, under Sections 323, 504 and 308 IPC.

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Having been aggrieved with the addition of offence under Section 308 IPC, accused has moved an application No.15-Kha, under Sections 216 and 227 Cr.P.C. to alter the charges as well as discharge the present accused from the offence under Section 308 IPC. After going through the application, in accordance with law, learned trial court has rejected the said application, vide order impugned dated 11.4.2023, which is under challenge before this Court.

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Learned counsel for the applicant submits that at subsequent stage complainant, on an application been moved under Right to Information Act, has been informed that the victim was not

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admitted during the period of 16.7.2019 to 20.7.2019 in the Deen Dayal Hospital, Aligarh therefore, head injury as caused to be shown in the crime scene was not inflicted due to stick blow allegedly made by the complainant, rather it was caused due to falling down on the ground. It is further submitted that in the light of the information received under the RTI., allegation of offence under Section 308 IPC is not credible, therefore, same may be struck off and the present applicant may be exculpated under the said section.

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Per contra, learned A.G.A. has vehemently opposed the submission as raised by the learned counsel for the applicant and contended that after framing of charge, an application moved on behalf of the present applicant for discharge is not maintainable in the eyes of law. It is further contended that considering the averment as made in the FIR coupled with the material available on record the complicity of the present applicant in the commission of crime under Section 308 IPC cannot be ruled out. The veracity of the document adduced on behalf of the defence during the statement of prosecution witnesses and the injury caused to the victim during scuffled took place between the parties are subject matter of the trial which can more appropriately be adjudicated upon by the trial court after appreciating the evidence to be adduced by the parties concerned. At this juncture, no ground made out to alter the charges under Section 216 Cr.P.C. and discharge the present applicant under Section 227 Cr.P.C. in exercise of inherent jurisdiction under Section 482 Cr.P.C.

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Having considered the rival submissions advanced by learned counsel for the applicant, learned A.G.A. and perusal of the record, it is manifested that the charges has already been framed against the present applicant under Sections 323, 304 and 308 IPC. Moving an application, at later stage, for discharge under Section 227 Cr.P.C. is not sustainable in the eyes of law. So far as the alteration of charge with respect to the offence under Section 308 IPC is concerned, learned trial court has discussed the matter in detail and rejected the application no.15Kha with an observation that PW-1 and PW-2 in their deposition have clearly stated the role of the present applicant inflicting the head injury to the victim by iron rod. Medico legal report is yet to be examined. Mere on the basis of the reply obtained under RTI Act, the truthfulness of the medico legal report and the statement of prosecution witnesses cannot be doubted. The truthfulness and the genuineness of the medico legal report is still to be tested/examined after deposition to be made by the Medical Officer and other corroborating

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evidences. Learned trial court has rightly rejected the application No.15-Kha. At this juncture, only on the basis of reply obtained under the RTI Act qua admission of the victim in the hospital, the offence under Section 308 IPC cannot be struck off by altering the charges.

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In this conspectus, as above, I do not find any illegality, perversity or irregularity in the order impugned dated 11.4.2023. No justifiable ground is made out to interfere in the impugned order in exercise of inherent jurisdiction under Section 482 Cr.P.C. There is no abuse of process of Court or any justifiable ground to pass an order to secure the ends of justice. Opportunity is still opened for the applicant to defend his case before the trial court.

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Resultantly, instant application, being misconceived and devoid of merits, is dismissed with no order as to costs.

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Order Date :- 3.8.2023 Mini

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Digitally signed by :- MINI KANAUJIYA High Court of Judicature at Allahabad

Rakesh Kumar v. State of U.P. and Another

Case brief

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Rakesh Kumar v. State of U.P. and Another

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