Arun Kumar Sharma Vs the State of Chhattisgarh

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2025:CGHC:20536

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1532 of 2025

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1 - Arun Kumar Sharma S/o Shri Salik Ram Sharma Aged About 52 Years R/o Village- Lukapara, Police Station- Sariya, District- Sarangarh-Bilaigarh (C.G.)

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... Petitioner(s)

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versus

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1 - The State of Chhattisgarh Through- The District Magistrate, District- SarangarhBilaigarh, Through The Station House Officer, Police Station Sariya, DistrictSarangarh-Bilaigarh (C.G.)

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... Respondent(s)

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For Petitioner(s) : Mr. Roop Ram Naik, Advocate. For Respondent(s) : Ms. Sunita Sahu, Panel Lawyer.

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J.

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Order on Board

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05/05/2025

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The present petition has been filed by the petitioners under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the order dated 01-032025 passed by learned Additional Judge to the court of learned Additional Sessions Judge, District Sarangarh-Bilaigarh, in Criminal Revision No. 13/2023, whereby the learned revisional court has dismissed the criminal revision filed by the petitioner.

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Brief facts of the case are that on 05-11-2019, a written complaint was made by the complainant against the petitioner with the allegation of outraging her modesty and acting with intention to outrage her modesty. The offence under Section 509 of the IPC was registered bearing Crime No. 185/2019, and after investigation, charge sheet has been filed against the petitioner for the offence of Section 509, 354-A of the IPC. The petitioner is an accused in the said offence. Charges for the offence under Section 509 and 354-A of the IPC were framed on 12-07-2023 against the petitioner, and the learned trial court proceeded for recording evidence of the prosecution witnesses.

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On 17-07-2023, the prosecution filed an application under Section 216 of the Code of Criminal Procedure, 1973, for framing of the additional charge of Sections 354, 354-A, 354-C, 354-D, 186, 509 and 506 of the IPC. It is averred by the prosecution in the application that the accused had threatened the complainant and deterred the public servant from his duty to do the work under his instructions, and he made obscene gestures and tried to outrage her modesty, stalking the complainant and therefore, the additional charge should also be framed against the accused.

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The accused had filed reply to the application of the prosecution, and after hearing the parties, on 22-07-2023, the learned trial court allowed the application filed by the prosecution under Section 216 of Cr.P.C. and framed the additional charge of Sections 354, 354-A, 354-D, 506, 509, 189 of IPC.

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The order dated 22-07-2023 passed by the learned trial court was challenged by the petitioner before the learned Additional Judge to the Court of Additional Sessions Judge, Sarangarh-Bilaigarh, in Criminal Revision No. 13/2023. After hearing the parties, the said criminal revision is dismissed by the learned revisional Court vide order dated 01-03-2025, which is under challenge in the present petition.

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learned counsel for the petitioner has submitted that the prosecution has no right to file an application for alteration or modification of the charge, and it is

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upon the court to consider the evidence independently as to whether the charge framed earlier is required to be altered or any new charge is to be framed or not in view of the evidence came on record. He would also submit that the trial court has ample power to alter, amend or add the charge before the pronouncement of judgment, but not on the basis of the application filed by the parties. He would also submit that the evidence of the prosecution witnesses has not started yet, and there is no evidence available on record to frame the additional charge against the petitioner. Therefore, there is no prima facie material available on record for framing the additional charge of Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC. Therefore, the impugned order dated 22-07-2023 be set aside.

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On the other hand, learned counsel for the state supported the impugned order and has submitted that the learned trial court has rightly exercised its jurisdiction provided under Section 216 of Cr.P.C. and has framed the additional charge of Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC. There is sufficient material available on record for framing of the additional charge under Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC, and the accused has ample opportunity to cross-examine the witnesses. The order impugned is based on proper appreciation of the evidence available on record and principles of law laid down by the Hon’ble Supreme Court, which needs no interference.

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I have heard learned counsel for the parties and perused the material produced by the petitioner in the present case.

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Section 216 of the Cr.P.C. provides for framing or altering the charge framed by the learned trial court and provides that the learned trial court, at any time before the pronouncement of judgment, may alter, amend or frame the new charge. Section 216 of the Cr.P.C. is reproduced hereinbelow for ready reference:-

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"216. Court may alter change- (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 had 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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True it is that the trial court has ample power to alter, amend or frame new charge at any time before the pronouncement of judgment, but the question would be whether the court can exercise its power on the basis of the application filed by the parties or the court can exercise its jurisdiction on its own based on the evidence available on record. The provision enables the alteration or addition of a charge based on material available on record during the trial. Sub-section 3 of Section 216 provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the prosecutor in the conduct of the case, the court may proceed with the trial. Sub-section 4 of Section 216 contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the

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court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused.

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The Hon’ble Supreme Court, in the matter of P. Kartikalakshmi Vs. Sri Ganesh, 2017 (3) SCC 347 , dealt with the situation where the application for alteration of the charge was filed. In para 6 of its judgement, the Hon’ble Supreme Court has held that:-

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" 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."

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Similarly, in the matter of Anant Prakash Sinha alias Anant Sinha Vs.

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State of Haryana, 2016 (6) SCC 105 , the Hon’ble Supreme Court has considered that :-

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"18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or a the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before

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pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed b by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC."

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Recently, the Kerala High Court, in the matter of State of Kerala Vs. Azeez and Others reported in 2024 SCC Online (Ker.) 2059 considered that the exercise of jurisdiction cannot be based on the application of the party but should be on the basis of the own satisfaction of the court. Para 12 of the judgment of the Kerala High Court reads as under:-

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"12. Thus, the request for the addition of the charge under section 370 IPC, as it stood prior to 2013, cannot be made at the instance of the prosecution. An addition of charge has to be done by the Court based upon its own satisfaction and not at the behest of any of the parties to the trial."

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In the present case, the learned trial court, after considering the provisions of Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC and also on the basis of the application filed by the prosecution, allowed the application and framed the charge of Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC. There is no independent consideration of the learned trial court based on the evidence of the prosecution witnesses, as the evidence has not been recorded yet. The consideration of the learned trial court is on the basis of the material available in the charge sheet, and the charge of Section 354-A and 509 of the IPC has already been framed vide order dated 12-07-2023. The consideration of the learned trial court is on the basis of the averments of the application filed by the prosecution, which cannot be termed as

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independent consideration or subjective satisfaction of the learned trial court based on the evidence available on record. No doubt that the learned trial court has ample power to alter, amend or frame a new charge any time before the pronouncement of judgment, but not on the application filed by the prosecution. But the question is by which mode? Can it be by own satisfaction or upon the application file by any of the parties? From the aforesaid judgement of the Hon’ble Supreme Court, it is clear that the jurisdiction of Section 216 Cr.P.C. cannot be exercised on the application made by any of the parties, but on its own satisfaction.

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For the foregoing reasons, the present petition is allowed , and the impugned orders dated 01-03-2025 (Annexure P-1) passed by the learned revisional court and the order dated 22-07-2023 (Annexure P-2) passed by the learned trial court are liable to be and hereby set aside .

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It is made clear that the interference is not on the merits of the case, but on the ground that the jurisdiction of Section 216 cannot be exercised on the application made by the parties as in the present case, the prosecution has moved the application, which is allowed by the learned trial court and an additional charge of Sections 354, 354-A, 354-D, 506, 509 and 189 of IPC have been framed. The learned trial court will be at liberty to independently consider the alteration or addition of the charge in accordance with the law if it is so satisfied.

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Alok

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Digitally signed ALOK by ALOKSHARMA SHARMA Date: 2025.06.04 11:37:01 +0530

Arun Kumar Sharma v. the State of Chhattisgarh

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Arun Kumar Sharma v. the State of Chhattisgarh

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