Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 1115 (ALL)

Sanoj Kumar Yadav v. Versus State Of U. P.

2025-09-09

SHREE PRAKASH SINGH

body2025
JUDGMENT : SHREE PRAKASH SINGH, J. 1. Heard Mr. Satyendra Kumar Tewari and Mr. Rajesh Pandey, learned counsels for the applicant, Mr. Anirudh Kumar Singh, learned A.G.A.-I, Mr. Sushil Kumar Pandey and Mr. Nirmal Kumar Pandey, learned A.G.A.’s appearing for the State. 2. The instant application filed under section 482 Cr.P.C./528 of the B.N.S.S.,2023, is directed against the order dated 03-07-2025, passed by the learned Sessions Judge, Sultanpur, in Sessions Trial No. 208 of 2024, arising out of Case Crime No. 363 of 2023, under sections 323, 324, 342, 504, 506 readwith section 34 and section 120-B, 307 and 302 of I.P.C. whereby, the learned Sessions Judge has altered the charge u/s 302 I.P.C. to u/s 304 of I.P.C. and u/s 307 I.P.C. to u/s 308 I.P.C., thus the charges are framed under sections 323/34,342/34, 308/34,304/34,504,506,120-B of I.P.C. 3. The briefly stated facts are that the opposite parties no. 2 to 4 had an old enmity with the applicant, therefore, on 20-11-2023, in the morning, when the nephews of applicant namely, Vikas Yadav and Amit Yadav, were going for natural call, the opposite parties no. 2 to 4 tried to crush them by a vehicle namely, Bolero and when, an alarm was raised, the accused persons came out from their vehicle and started beating both the injured, with ‘Lathi-Danda’ and with sharp edged weapons and when the passersby intervened, the opposite parties no. 2 to 4 ran away from the place of occurrence. In the said incident, both the injured persons received serious injuries and they were taken to the hospital at Sultanpur, thereafter, they were referred to Trauma Centre, Lucknow. During the treatment, one of the nephew of the applicant namely, Amit Yadav died on 21-11-2023 and an information regarding his death was given at the police station on 22-11-2023. 4. The first information report bearing Case Crime No. 0363 of 2023, was initially lodged under sections 323, 324, 342, 504 & 506 of I.P.C. at Police Station-Motigarpur, District-Sultanpur and after the death of one of the injured, sections 302 & 307 of I.P.C. were added. 5. The post-mortem report, which was conducted at government hospital,Lucknow, finds mention of five injuries over the body of the deceased. 5. The post-mortem report, which was conducted at government hospital,Lucknow, finds mention of five injuries over the body of the deceased. The case was committed for trial before the learned Sessions Judge, Sultanpur and thereafter, an application under section 216 of Cr.P.C. for altering the charges was moved on behalf of the opposite parties no. 2 to 4, on 16-05-2024, whereafter, the applicant filed objection, on 21-05-2024 and the learned trial court vide order dated 17-01-2025, allowed the application under section 216 of Cr.P.C. moved by the accused persons and altered the charges from sections 302 & 307 of I.P.C. to sections 304 & 308 of I.P.C., respectively. 6. Being aggrieved with the order dated 17-01-2025, passed by the learned Sessions Judge, Sultanpur, the applicant moved an application under section 482 Cr.P.C./528 of B.N.S.S.,2023 bearing no. 2533 of 2025, wherein this court passed an order on 18-04-2025. This court vide aforesaid order, quashed the order dated 17.1.2025 and the learned trial court was given liberty to pass appropriate order keeping in view the provisions contained in Section 216 of Cr.P.C., on it’s own instance, and also keeping in view the observations made in the order, after affording opportunity of hearing to all concerned. 7. After the aforesaid order was passed, the applicant again approached the learned trial court while moving an application with order dated 18- 04-2025,wherein the order impugned dated 03-07-2025 is passed by the learned Sessions Judge, Sultanpur. 8. Having at a glace of the order impugned, it is apparent that the learned Sessions Judge, has observed that though the application No. 8-B, under section 216 of Cr.P.C. was moved on behalf of the opposite parties no. 2 to 4, but, when the objection was raised on it’s admissibility, orally, the application was not pressed and after noting the oral admission for not pressing the application by the applicant, the order dated 17-01-2025 was passed, but, the same was concealed by the applicant while filing the application under section 482 Cr.P.C./528 of the B.N.S.S.,2023 bearing no. 2533 of 2025, before this court. 9. After recording the aforesaid facts, the trial court proceeded afresh, in the matter, in compliance of the directions made by this court, on 18-04-2025. 10. 2533 of 2025, before this court. 9. After recording the aforesaid facts, the trial court proceeded afresh, in the matter, in compliance of the directions made by this court, on 18-04-2025. 10. The questions cropped up before this court are in two folds :- (1) That whether the charges can be altered on an application moved by either of the parties and secondly, at the stage of framing of charges, what material is to be looked into by the learned trial court. 11. When this court examines that whether on an application moved by either of the parties, charges could be altered or not, the content and intent of Section 216 of the Cr.P.C., is necessarily to be gone into. Section 216 of Cr.P.C. 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 has 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. 12. (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. 12. From a bare reading of the aforesaid provisions, it is abundantly clear that the court is empowered to alter the charge, which is apparent from the start wordings of the provision, which says that ‘Any court may alter or add to any charge at any time before Judgment is pronounced’ and further the aforesaid provision emphasizes from reading of the head-note (heading) of the provision, which says that the ‘Court may alter charge’. The aforesaid provision is indicative of the intent of the legislature that there is no such provision that anyone other than the court, can have a right to alter the charge. 13. Time and again, this issue has been dealt with by the Hon’ble Apex Court and recently, reiterating the view earlier taken by it, this has been held in the case of Directorate of Revenue Intelligence Vs Raj Kumar Arora and Others , reported in 2025 SCC Online SC 819 , in paragraph no. 144, as under :- 144. The Court may alter or add to any charge either upon its own motion or on an application by the parties concerned. Therefore, such a power can be invoked by the Court suo moto as well. This power under Section 216 CrPC is exclusive to the concerned Court and no party can seek such an addition or alteration of charge as a matter of right by filing an application. It would be the Trial Court which must decide whether a proper charge has been framed or not, at the appropriate stage of the trial. On a consideration of the broad probabilities of the case, the total effect of the evidence and documents adduced, the Trial Court must satisfy itself that the exercise of power under Section 216 is necessary. The provision has been enacted with the salutary object to ensure a fair and full trial to the accused person(s) in each case. 14. On a consideration of the broad probabilities of the case, the total effect of the evidence and documents adduced, the Trial Court must satisfy itself that the exercise of power under Section 216 is necessary. The provision has been enacted with the salutary object to ensure a fair and full trial to the accused person(s) in each case. 14. From the abovesaid ratio, it is abundantly clear that it has been a constant view of the Hon’ble Supreme Court that the court may alter or add any charge on it’s own or on an application moved by the parties concerned, but, such powers can be invoked by the court suo-moto, meaning thereby that the power under section 216 of Cr.P.C. is exclusive to the wisdom of the court concerned and no party can claim the alteration in the charges, as a matter of right. 15. The Hon’ble Apex Court in the case of State of Rajasthan Vs Ashok Kumar Kashyap , reported in (2021) 11 Supreme Court Cases 191 , has held in paragraph nos. 10,11 & 15 that at the stage of framing of the charges or rejecting the application of discharge, it is to be looked into that whether prima-facie, a case has been made out and whether the accused is required to be further tried or not, thus, the mini trial is not permitted. Paragraph nos. 10,11 & 15 of the Judgment are extracted as under :- 10. By the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order, the High Court in exercise of its revisional jurisdiction has set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act and consequently has discharged the accused for the said offence. What has been weighed with the High Court while discharging the accused is stated in paras 10 and 11 of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order, which are reproduced hereinabove. 11. While considering the legality of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to. 11.1. 11. While considering the legality of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to. 11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11.2. In the recent decision of this Court in M.R. Hiremath [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 : (2019) 3 SCC (Cri) 109 : (2019) 2 SCC (L&S) 380] , one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under : (SCC p. 526) “25. The High Court [M.R. Hiremath v.State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The High Court [M.R. Hiremath v.State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N.v.N. SureshRajan[State of T.N.v.N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para 29) ‘29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.’ ” 15. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.” 16. This court has also passed an order on 09.05.2025, in Criminal Appeal No. 1014 of 2025, in the case of Radhey Lal Vs State of U.P. and Another , wherein paragraph no. 24, it has been held that the claim for alteration in the charge, cannot be raised as a matter of right, though, the application can be moved for bringing the omission or error in framing of the charges before the learned trial court, but, it is the exclusive domain of the learned trial court to alter the charges. 17. Applying the aforesaid ratio to the case in hand, it apt to say that the impugned order dated 03-07-2025, reveals that the learned trial court has gone into the records of the case i.e. the Chargesheet, Chik F.I.R., Tahrir, Injury Report, Inquest Report including the post-mortem report, Site plan and Case Diary etc. The nature of injuries which are reported in the post- mortem report has also been discussed and alongwith that, the first information report version has been co-related. Moreso, it is observed by the learned trial court in it’s order dated 03-07-2025 that the application for alteration of charges moved by the applicant was not pressed orally and a note was also made for not pressing the same and there is no reason to disclose it, though the same was not disclosed by the applicant before the coordinate Bench of this court while challenging the order dated 17- 01-2025, but, after noticing the aforesaid, the learned trial court proceeded in compliance of the order dated 18-04-2025 passed in application under section 482 Cr.P.C./528 of the B.N.S.S. No. 2533 of 2025 and while considering the material available on record, has passed the order, on 03-07-2025 and in this view of the matter, this court does not find any illegality or erroneousness in the order impugned dated 03-07-2025. 18. 18. Coming to the next issue that while framing the charge, what material is to be looked into and discussed by the learned trial court, it is trite law on the issue that it is expected from a trial Judge to exercise his judicial mind to determine that as to whether a case for trial has been made out or not, and while undertaking such proceedings, the court is not supposed to hold a mini trial by marshalling the facts and evidence on record. Infact, if the material available before the court, gives subjective satisfaction of existence of prima-facie case of the alleged offence, it is sufficient enough to proceed with the case. 19. Ergo, this court is of the considered opinion that the order impugned dated 03-07-2025, does not assail any illegality or infirmity. Thus, there is no merit in this application and consequently, the application is hereby dismissed. 20. The trial court may proceed in accordance with law. 21. Consigned to record.