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2024 DIGILAW 320 (ALL)

Ranjeet v. State

2024-01-31

MANOJ BAJAJ

body2024
JUDGMENT : Manoj Bajaj, J. Applicants- Accused have filed this application under Section 482 Code of Criminal Procedure to challenge the order dated 05.12.2023 passed by Special Judge (POCSO Act)/Additional Sessions Judge, court no.8, Ballia in S.S.T. No.391 of 2018, titled State Vs. Arun @ Arun Kumar and others, arising out of case crime no.130 of 2018, under Sections 363, 366, 376, 504, 506 IPC and Section 3/4 of POCSO Act, Police Station Gadwar, District Ballia, whereby the application dated 13.09.2021 filed by the prosecution seeking alteration of charge has been allowed. 2. Learned counsel submits that the subject case was registered on the basis of the complaint given by Govind Kumar, wherein it was reported that his daughter has been enticed away by the accused persons, namely, Arun Kumar, Ranjeet, Krishna, Shanker, Ravishanker etc. He submits that after registration of the case, the investigation was carried out and the final report was filed on 13.10.2018, thereby sending the accused- Arun Kumar to face trial for the alleged commission of offence punishable under Sections 376 IPC etc., whereas the rest of the accused persons (applicants) were forwarded to face trial only for offences punishable under Sections 504, 506 IPC. 3. Learned counsel submits that the trial court upon considering the final report proceeded to frame the charges against the accused persons vide order dated 23rd October, 2019, and while referring to the said order, he highlighted that the accused applicants were charged only for the alleged commission of offences punishable under Sections 504, 506 IPC. Learned counsel has pointed out that after framing of charges, the prosecution examined its witnesses and after recording the deposition of victim, an application dated 13th September, 2021 (Annexure No.9) was moved seeking alteration of the charges and the same has been allowed by the trial court vide impugned order dated 5th December, 2023. 4. Learned counsel refers to the statement of victim under Section 161 Cr.P.C. and submitted that the charges initially were rightly framed as the names of the applicants were not mentioned, and attribution of the alleged commission of offence of rape is against accused- Arun Kumar. Learned counsel has vehemently argued that the power under Section 216 Cr.P.C. vested with the trial court cannot be exercised at least by moving an application by the complainant, and the charge can only be altered suo moto by the court. Learned counsel has vehemently argued that the power under Section 216 Cr.P.C. vested with the trial court cannot be exercised at least by moving an application by the complainant, and the charge can only be altered suo moto by the court. In support of his submissions, he has placed reliance on the decision of the Supreme Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and another, 2017 (3) SCC 347 . According to him, the deposition of the victim recorded during trial is in contradiction to her statement under Section 161 Cr.P.C., therefore, the impugned order is not sustainable in the eyes of law. He prays that the impugned order be set aside. 5. Learned counsel has been heard, and with his assistance, the case file has been perused. 6. Before adverting to the merits of the case, this Court deems it appropriate to examine Section 216 Cr.P.C., which reads as under: "216. Court may alter charge:- (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (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. (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. (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." 7. (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." 7. A bare perusal of the above provision indicates that the statute has conferred an extraordinary powers with the trial court to either alter or amend the charge, framed earlier, at any stage before the pronouncement of the final judgement. At the stage of exercising the jurisdiction under Section 216 Cr.P.C., the trial court must satisfy itself that there exists convincing material and grounds to alter the existing charge. At the same time, while exercising this power, the trial court must also bear in mind the stage of the trial, and other attending circumstances to assess that the alteration of charge, would not result in any prejudice to the accused. 8. Now, while examining the record of the case in hand, this Court finds that the charges framed earlier against the accused vide order dated 23rd October, 2019 have been altered by relying upon the same material collected during investigation, particularly on the basis of the statement of victim recorded under Section 164 Cr.P.C. Of course, the statement of the victim recorded under Section 161 Cr.P.C. is at some variance to the statement under Section 164 Cr.P.C., but this aspect is to be examined by the trial court once the evidence of the prosecution is concluded. As per the statement of the victim recorded under Section 164 Cr.P.C., the victim has made specific attributions against the applicants also, thus, prima facie, it shows the involvement of the applicants in the alleged crime. It appears that at the stage of framing of the charges on 23rd October, 2019, the statement of the victim under Section 164 Cr.P.C. escaped the attention of the trial court and it led to the error in framing of charges. 9. It appears that at the stage of framing of the charges on 23rd October, 2019, the statement of the victim under Section 164 Cr.P.C. escaped the attention of the trial court and it led to the error in framing of charges. 9. Further, upon examining the case conversely, this Court finds that it is not a case where by way of alteration a new case is being set up by the prosecution on the foundation of new material or evidence, as the record of the case considered by the trial court at the initial stage of framing the charges is again considered carefully while passing the impugned order dated 5.12.2023. 10. The other argument of the learned counsel that the charges cannot be altered on the basis of an application by the complainant is also misconceived, as any party to the trial is free to point out to the trial court any error or omission committed, while framing the initial charges. Here it will be useful to refer to the decision of the Hon'ble Supreme Court delivered in Anant Prakash Sinha @ Anant Sinha vs. State of Haryana and another, reported in AIR 2016 SC 1197 , wherein the similar argument raised by the accused that the application for alteration of charge moved by the first informant could not have been entertained by the magistrate while adding the charge under Section 406 IPC, against the husband, in addition to the earlier charges under Sections 498A and 323 IPC, as the application could have been moved by the Public Prosecutor, has been considered by the Hon'ble Supreme Court, which was negated with the following observations: "20. ........The instant case does not pertain to trial or any area by which a private lawyer takes control of the proceedings. As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo moto. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo moto. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view. .." 11. The decision of the Hon'ble Supreme Court in P. Kartikalakshm's case (supra) relied upon by the applicants also categorically holds that by virtue of Section 216 Cr.P.C., the trial court is empowered to alter the charges at any stage before the judgement is pronounced, and the observation that such a power is exclusive to the court and it does not give any right to the party to seek addition or alternation by filing an application as a matter of right, would certainly mean that the charge cannot be added merely on the basis of the pleadings of the applicant, unless the material on record of the case, or evidence recorded during trial suggests that the alteration/modification of the existing charge is necessary. 12. A reading of the impugned order would show that the trial court has carefully examined the material on record while exercising the jurisdiction under Section 216 Cr.P.C. and the same is based upon correct appreciation. Apart from it, the trial is at the initial stage, therefore, it is not a case where it would result in any kind of prejudice to the accused. Consequently, the impugned order does not suffer from any illegality. 13. Before parting with the decision, this Court deems it appropriate to observe that the order altering the charge is revisable and ordinarily, the petition under Section 482 Cr.P.C., cannot be entertained in view of the availability of the alternatively statutory remedy, but as the impugned order is passed by the court of Sessions, therefore, the revision would also lie before this Court only, and considering the limited grounds raised by the applicant herein, this Court has decided this petition on merits. 14. No other argument has been raised. 15. Resultantly, without meaning any expression of opinion on the merits of the case, this application is dismissed.