Sarat Barik @ Sarat Chandra Barik Vs State of Odisha

The background of the case is that the informant had lodged First Information Report ( in short “ FIR ”) on 07.01.2023 leading to registration of Jagatsinghpur P.S. Case No. 20/2023 for commission of offences punishable under Section 341,294,323,354-B,506 of IPC read with Section 8 of the POCSO Act against the petitioner. Thereafter, Jagatsinghpur P.S. Case No. 21/2023 had been registered against the informant (father of the victim) on the information of the wife of the petitioner leading to registration of case under Section 294,506 of the IPC. After the completion of investigation, final report (false) dated 01.08.2023 under Section 341,294,323,354-B,506 of IPC read with Section 8 of the POCSO Act was submitted in Jagatsinghpur P.S. Case No. 20/2023. Being aggrieved with the final report, protest petition was submitted by the complainant leading to registration of 1CC No. 25/2023 where after conducting inquiry, charge was framed against the petitioner for commission of offences punishable under Section 341,323,509,294,506, 427,354-B of IPC read with Section 8

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of the POCSO Act. After examination of the witnesses for the complainant, an application was filed by the Special PP on 13.02.2025

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CRLMC No. 1487 of 2025

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praying for addition of charge for commission of offence under Section 376 of the IPC read with Section 6 of the POCSO Act. After hearing both sides on 29.03.2025, the said application has been allowed referring to the decision dated 28.03.2023 of this Court in the case of Prasanta Kumar Sethi and another vs. State of Orissa .

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Mr. S. Mohanty, learned counsel for the petitioner challenges the said order primarily on the ground that the charge could not have been altered on the application of the Special PP as the case was a complaint case having been initiated on the basis of a protest petition filed by the complainant. He submits that the special PP has no locus standi to file such an application for which the impugned order is liable to set aside. He does not press his contention that there is no material to frame charge against the petitioner for the offence under Section 376 of the IPC.

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Mr. S. Mohanty, learned counsel for the petitioner relies on the decision of the Supreme Court in the case of P. Kartikalakshmi vs. Sri Ganesh :(2017) 3 SCC 347 : (2017) 2 SCC (Cri) 84 : 2014 SCC OnLine SC 1611 submits that no party in a case has any right to seek for addition or alteration of the charge under Section 216 of the

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Cr.P.C. as a matter of right and the power only vests with the Court.

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He relies on the following paragraph of the decision;

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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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The Bharatiya Nagarik Suraksha Sanhita, 2023 (in short “the

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BNSS”) has replaced the existing Cr.PC, Section 239 of the BNSS

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corresponds to Section 216 of the Cr.P.C .The two sections are

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extracted below;

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“Section 216. Court may alter charge .

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“(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 has 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

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prosecution on the same facts as those on which the altered or added charge is founded.”

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“ Section 239. Court may alter charge.

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(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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From a reading of the provisions it is apparent that the Court may alter or add to any charge, at any time before judgment is pronounced and if the alteration or addition of charge is likely to prejudice the accused in the opinion of the Court , the Court may, in its discretion, after alteration or addition of the charge proceed with the trial as if the charge had been altered or added being the original charge or if it is likely to prejudice the accused the Court may direct for a new trial or adjourn the trial for such period as may be necessary. Discretion has been provided to the Court to alter or add any charge if any time before judgment is pronounced.

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In the case of P. Kartikalakshmi (supra), it has been held that

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no right is available to any party praying for addition or alteration of the charge by filing any application as a matter of right but it is apparent that if it comes to the notice of the Court at any time that addition or alteration is necessary it can do so.

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Perused the order dated 29.03.2025. The learned trial Court was satisfied after examination of the evidence adduced on behalf of the prosecution that there exists sufficient materials to presume that the petitioner is involved in the offence punishable under Section 376 of the IPC read with Section 6 of the POCSO Act and allowed the

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petition of the Special PP. Once it has come to the knowledge / notice of the learned trial Court that material exists for alteration of the charge in my view, it is not relevant as to who has filed the application bringing such existence of the materials to the notice of the Court.

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Hence, I am not inclined to accept the submission of the learned counsel for the petitioner that charge could not have been altered on the application filed by the Special PP in a complaint case which is proceeding on the protest petition of the complainant.

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10. The CRLMC is accordingly dismissed.

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Needless to say, it is open to the petitioner to raise his contentions in the trial, regarding absence materials to make out the offence under Section 376 IPC against him, which if raised shall be considered on its own merit along with other contentions, in accordance with law.

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…………….…….

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(Savitri Ratho)

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Judge

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Orissa High Court, Cuttack Dated 23^rd April, 2025 / Subhalaxmi

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Signature Not Verified

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Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication CRLMC No . 1487 of 2025 Location: Orissa High Court, Cuttack Date: 09-Jul-2025 19:54:03

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Sarat Barik @ Sarat Chandra Barik v. State of Odisha

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Sarat Barik @ Sarat Chandra Barik v. State of Odisha

Case brief

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