Dismissed

Gautam Srivastava Alias Gattu v. State of U.P. and Another

Allahabad HC3 Jul 2024A482/20037/2024

Case brief

AI extract

What is this about?

Application under Section 482 CrPC to quash the trial court's addition of charges for Section 376 IPC and Sections 3/4 POCSO Act on an informant's application under Section 216 CrPC. Relying on Supreme Court decisions that veracity of witness statements is a matter of trial and charge framing needs only prima facie material, the court dismissed the application.

What the court decided

AI extract

Gautam Srivastava Alias Gattu vs State of… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

¶1

Court No. - 78Neutral Citation No. - 2024:AHC:120004

¶2

Case :- APPLICATION U/S 482 No. - 20037 of 2024

¶3

Applicant :- Gautam Srivastava Alias Gattu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Munna Prasad Yadav Counsel for Opposite Party :- G.A.,Om Narayan Pandey

¶4

Hon'ble Sanjay Kumar Pachori,J.

¶5

Rejoinder affidavits filed today by learned counsel for the applicant in reply to the counter affidavits of State and opposite party No. 2/first informant are taken on record.

¶6

Heard Shri Ramesh Kumar Pandey, Advocate holding brief of Shri Munna Prasad Yadav, learned counsel for the applicant, learned A.G.A. for the State and Shri Om Narayan Pandey, learned counsel for the opposite party No. 2/first informant.

¶7

The present application under Section 482 Cr.P.C. has been filed to quash the order dated 15.5.2024 passed by Additional Sessions Judge/Special Judge (POCSO Act) Court No. 42, Shahjahanpur in Special Case No. 996 of 2022 (State Vs. Gautam Srivastava @ Gattu) arising out of Case Crime No. 171 of 2022, under Sections 452, 354-B, I.P.C. and Section 9/10 of Protection of Children from Sexual Offences Act, whereby the trial court added the charge for the offence punishable under Section 376, IPC and Section 3/4 of Protection of Children from Sexual Offences Act after allowing the application of first informant under Section 216, Cr.P.C.

¶8

Earlier to the impugned order dated 15.5.2024, the trial court framed the charges against the applicant under Sections 452, 354-B, IPC and Section 9/10 of Protection of Children from Sexual Offences Act.

¶9

Learned counsel for the applicant submits that the applicant is accused in the above noted case. It is further submitted that the victim first time stated in her chief examination, which was recorded on 2.1.2023, that the applicant entered finger in her private part and tightly captured her and bite on her shoulder. It is further submitted that in the statement of the victim recorded in pre-summoning evidence, there was no allegation as such. It is

¶10

¶11

further submitted that the order dated 15.5.2024 has been passed without considering these facts by the trial court.

¶12

Learned counsel for the first informant and learned A.G.A. for the State vehemently opposed the prayer and submitted that the veracity of the statement made by the witness is a question of trial. The appreciation of evidence on merit is to be done by the trial court only. It is further submitted that for the purpose of framing or adding of charge, the court needs to prima facie determine that there exists sufficient material on record. It is further submitted that there is existence of evidence on record with regard to addition of charges. The victim was 10 years old at the time of the incident. Hence, the application is liable to be dismissed.

¶13

The Supreme Court in Sajjan Kumar v Central Bureau of Investigation (2010) 9 SCC 368, it was observed that at the time of framing of the charge it is sufficient if the court is able to form a presumption regarding the existence of ingredients constituting the offence found upon the material placed before it. It is not necessary for the court to undertake an analysis of the credibility, veracity or evidentiary value of the materials placed before it.

¶14

In Dr. Nallapareddy Sridhar Reddy vs The State Of Andhra Pradesh (2020) 12 SCC 467, the Supreme Court observed as under:-

¶15

16 The decision of a two-judge Bench of this Court in P Kartikalakshmi v Sri Ganesh, dealt with a case where during the course of a trial for an offence under Section 376 of the IPC, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 of the IPC. Justice F M Ibrahim Kalifulla, while dealing with the power of the court to alter or add any charge, held:

¶16

“6. ... 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

¶17

¶18

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.”

¶19

9. In Dr. Nallapareddy (supra) the Supreme Court further observed in para 24 as under:-

¶20

The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference.

¶21

After going through the material on record, following facts are emerge:

¶22

(a) The trial court framed the charges for the offence punishable under Sections 452, 354-B, IPC and Section 9/10 of Protection of Children from Sexual Offences Act before addition of the charges;

¶23

(b) After recording the statement of the victim as PW-2, an application for addition of charge has been filed.

¶24

In view of the above facts and circumstances, keeping in mind the law laid down by the Supreme Court in Sajjan Kumar (supra) and Dr. Nallapareddy (supra), without going through the merit of the case, present application deserves no merit and is dismissed .

¶25

Order Date :- 26.7.2024 T. Sinha

¶26

Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad

Gautam Srivastava Alias Gattu v. State of U.P. and Another

Case brief

What is this about?

What the court decided

Gautam Srivastava Alias Gattu v. State of U.P. and Another

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Vinod Kumar vs State of U.P. and 5 Others

Durgesh vs State of U.P. and Another

Manoj vs State of U.P.

Devendra Kumar vs State of U.P. and Another

Pramod Chauhan vs State of U.P. and Another

Kallu vs State of U.P. and 3 Others