Allowed

Arvind Yadav v. State of U.P. and Another

Allahabad HC22 May 2023A482/41830/2022

Case brief

AI extract

What is this about?

This decision holds that under Section 216 Cr.P.C., only the Court has the exclusive power to alter or add charges before judgment pronouncement. No party, including an informant, has a vested right to file an application for such addition. The High Court allowed the applicant's petition to set aside the trial court's order framing additional charges based on an informant's application.

What did the court decide?

The impugned orders dated 04.11.2022 and 21.11.2022 framing additional charges under Section 5/6 P.O.C.S.O. Act are set aside.

Arvind Yadav Vs State of U.P. and… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:114140

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RESERVED

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Court No. - 69

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Case :- APPLICATION U/S 482 No. - 41830 of 2022 Applicant :- Arvind Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijit Saxena,Rakesh Kumar Mishra Counsel for Opposite Party :- G.A.,Vivek Kumar Mishra

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Vijit Saxena, learned counsel for the applicant, learned A.G.A. for the State and Sri Vivek Kumar Mishra, learned counsel appearing on behalf of opposite party no. 2.

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This application U/s 482 Cr.P.C. has been filed for quashing the order dated 04.11.2022 by which application filed by opposite party no. 2, under Section 216 Cr.P.C. was allowed as well as order dated 21.11.2022 by which additional charge under Section 5/6 P.O.C.S.O. Act has been framed against the applicant in Special Case No. 151 of 2019, arising out of Case Crime No. 145 of 2019, under Sections 452, 376, 323, 504, 506 I.P.C., Section 3(2)(v) of the SC/ST Act and Section 5/6 P.O.C.S.O. Act, Police Station Nigohi, District Shahjahanpur.

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Brief facts of the case is that opposite party no. 2 had lodged a first information report against applicant and his brother Chatendra Yadav which was registered as Case Crime No. 0145 of 2019, under Sections 376D, 452, 307, 511, 376 I.P.C., under Section 3(2)(v) of SC/ST Act and Section 5/6 of the P.O.C.S.O. Act. It is alleged in the first information report that applicant and his brother Chatendra Yadav had committed rape with his wife and had also fingered in the private part of his daughter aged about 9 years. The Investigating Officer had recorded the statements of victims under Section 161 Cr.P.C. in which they have supported the prosecution case. Both the victims were medically examined and as per

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report of Medico Legal Examination of Sexual Violence, there was no external injury on the body of the victims and it was observed that no sign of use of force was found by the doctor. The daughter of informant had stated before the medical team that no incident has taken place with her as alleged in the first information report rather the rape was committed with her mother. The Investigating Officer after completing the investigation has found that co-accused Chatendra Yadav who is brother of the applicant has been falsely implicated and there is no evidence against him. The Investigating Officer has submitted charge sheet against the applicant under Sections 376, 452, 323, 504, 506 I.P.C. and Section 3(2) (v) SC/ST Act and co-accused Chatendra Yadav was exonerated. The applicant was granted bail by this Court vide order dated 03.01.2020, passed in Criminal Appeal No. 4935 of 2019. The charges were framed against the applicant on 17.03.2021.

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During trial, the informant was appeared as PW-1 and daughter of informant was appeared as PW-2 and they supported the prosecution case. The opposite party no. 2 had moved an application on 16.09.2022 under Section 216 Cr.P.C. on the ground that both the prosecution witnesses PW-1 and PW-2 had stated in their statements before the court that the applicant had fingered in the private part of daughter of opposite party no. 2 and as such has committed offence punishable under the P.O.C.S.O. Act and it is prayed that additional charges under Section 5/6 of the P.O.C.S.O. Act be framed.

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The applicant had filed objection on 04.11.2022 to the application filed under Section 216 Cr.P.C. The trial court vide order dated 04.11.2022 had allowed the application and additional charges were framed under Section 5/6 of P.O.C.S.O. Act on 21.11.2022, which are impugned in the present application.

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Learned counsel for the applicant has submitted that the learned court below had committed gross illegality in allowing the application

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filed under Section 216 Cr.P.C. by the opposite party no. 2 / informant and it is not permissible under the law. It is further submitted that the trial court has ample power to alter or add any charge at any time before judgment is pronounced and the power is confined to the court and this provision does not provide any right to the complainant / informant to move application for framing of additional charge. Section 216 Cr.P.C. is quoted herein below :-

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“ 216. Court may alter charge.- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

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(2) Every such alteration or addition shall be read and explained to the accused.

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(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.

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(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.

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(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.”

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Learned counsel for the applicant has placed reliance on the judgment of Hon’ble Apex Court in the case of P. Kartikalakshmi vs. Sri Ganesh & Anr., reported in 2017 (3) SCC 347 . The relevant paragraph nos. 5, 6 and 7 of the said judgment are quoted herein below :-

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“5. 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

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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 : 1966 Cri LJ 700, 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.

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6. Having heard learned counsel for the respective parties, we find force in the submission of learned senior counsel for respondent no.1. 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 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.

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7. We were taken through Sections 221 & 222 of the 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

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the Criminal Court to conclude its proceedings and the concept of speedy trial will get jeopardized.”

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Lastly, it is submitted that Section 216 Cr.P.C. is exclusively confined with the court as an enabling provision for the purposes of alteration or addition of any charge at any time before pronouncement of judgment but no party either complaint or the accused has any vested right to seek any addition or alteration of charge and the court below had committed gross illegality in allowing the application filed on behalf of opposite party no. 2 / informant and framed additional charges under Section 5/6 of P.O.C.S.O. Act.

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On the other hand learned counsel appearing on behalf of opposite party no. 2 / informant has submitted that the learned court below after considering the evidence and material as well as statements of PW-1 & PW-2 has come to the conclusion that the offence under Section 5/6 P.O.C.S.O. Act is also made out against the applicant and has rightly passed the order allowing the application filed under Section 216 Cr.P.C. and framed additional charges under Section 5/6 P.O.C.S.O. Act. The order for framing additional charge has been passed by the learned trial couret is in accordance with law and there is no illegality in any manner and no ground for interference is made out and the present application filed by the applicant / accused is liable to be dismissed.

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Learned counsel for the opposite party no. 2 / informant has placed reliance on the judgmnet of this Court in the case of Rekha vs. State of U.P. reported in 2021 SCC Online All 161. In this case, the first information report was lodged under Sections 147, 148, 302 I.P.C. and after investigation, the Investigating Officer has submitted charge sheet under Section 306 I.P.C. and the statement of prosecution witnesses were recorded. An application under Section 216 Cr.P.C. was moved by informant to alter the charge from Section 306 I.P.C. to Section 302 I.P.C. on the ground that from the statement of prosecution witnesses, charge under Section 302 I.P.C. is also made out against the accused and the

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application was allowed. The learned trial court after considering the objection of the accused had allowed the application filed by informant under Section 216 Cr.P.C. which was challenged before this Court on the ground that the witnesses produced by the prosecution was not an eye witness and as such, the learned trial court has erred in relying the statement of prosecution witnesses in altering the charge from Section 306 I.P.C. to Section 302 I.P.C. Para 7 of the judgment is reproduced herein below :-

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“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.”

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From the perusal of para 7 of the aforesaid judgment, it is apparent that the order of learned trial court passed under Section 216 Cr.P.C. was challenged only on the ground that the eye witnesses produced by the prosecution were not the eye witnesses, the applicants have been falsely implicated and the entire proceedings are malicious. The order was not challenged on the ground that the order passed by learned trial court under Section 216 Cr.P.C. on the application of the informant and it is not permissible in law.

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Since, the issue in respect of application moved under Section 216 Cr.P.C. by the informant was not raised before the court and was not considered and decided by this Court.

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Considering the rival submission of learned counsel for the parties and perused the record. Section 216 Cr.P.C. confers the power of the court to alter or add any charge at any time before the judgment is pronounced and as such, only the Court is empowered to alter or add any charge at any time before judgment is pronounced and the power of Court under Section 216 Cr.P.C. is exclusive and there is no right to any party seeking for such addition or alteration by filing any application as a matter of right. It is an

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enabling provision for the court to exercise its power under certain contingencies which brought to its notice.

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The law has been settled by Hon’ble Apex Court in the case of P. Kartikalakshmi (supra) 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. It is also held by Hon’ble Apex Court that no party neither de-facto complainant nor the accused or for that kind of matters, the prosecution has any vested right to seek any addition or alteration of charge. The Hon’ble Apex Court has held that the application filed on behalf of complainant before the trial court under Section 216 Cr.P.C. was not maintainable.

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Now it is well settled law that no party either complainant or accused has any vested right to move any application under Section 216 Cr.P.C. to add or alter any charge and any application moved by any party is not maintainable and it is only the Court which is empower to alter or add any charge at any point of time before pronouncement of judgment.

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In the present case, the application filed by informant/opposite party no.2 under Section 216 Cr.P.C. was allowed by the trial court by the impugned order, which is against the law.

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In view of above, the present application under Section 482 Cr.P.C. is allowed and the orders impugned dated 04.11.2022 and 21.11.2022 are hereby set aside.

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Order Date :- 22.05.2023 sailesh

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Digitally signed by :- SAILESH PRAJAPATI High Court of Judicature at Allahabad

Arvind Yadav v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Arvind Yadav v. State of U.P. and Another

Case brief

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