Subhash Kumar Ram And Ors vs The State Of Jharkhand on 17 July, 2017

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 421of 2017
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1. Subhash Kumar Ram, S/o Ram Chandra Ram.
2. Ram Chandra Ram, S/o late Parmeshwar Ram.
3. Brinda Devi, W/o Ram Chandra Ram, R//o village-Barachak,
P.O. P.S. Barachak, District-Burdwan (W.B.).
….Petitioners
Versus
The State of Jharkhand …..Opposite Party
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Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY
———-
For the Petitioners: Mr. Nityanand Prasad Choudhary, Advocate
For the State : APP
For the Informant : Mr. Sheo Kumar Singh, Advocate
—–
03/17/07/2017

Heard the parties.

This application is directed against the order dated
16.2.2017 passed by the learned Additional Sessions Judge-1,
Jamtara in Jamtara P.S. Case No. 353 of 2015, whereby and
whereunder the charge has been altered under the provisions of
Section 216 Cr.P.C. to 366A and 120B of the Indian Penal Code
and Section 10 of the POCSO Act.

It has been submitted by the learned counsel for the
petitioner that the charge was altered at the instance of the
informant, which is not maintainable as under section 216 Cr.P.C.
the power lies entirely with the court to alter charge suo motu or
if it is brought to the knowledge of the court there is no necessity
of passing any order or entertaining an application preferred by
the informant or by the State to alter charge under the
provisions of Section 216 Cr.P.C. It has further been submitted
that if such applications are allowed to be entertained, same
would lead to unnecessary delay in disposal of the trial and
ultimately a chaotic situation will emerge. Learned counsel in
support of his contention has referred to a judgment of the
Hon’ble Supreme Court passed in the case of P. Kartikalakshmi
Vs. Sri Ganesh and Another reported in (2017) 3 SCC 347.

Mr. Sheo Kumar Singh, learned counsel for the informant,
on the other hand, has supported the impugned order and has
stated that since sufficient reasons have been given, the charge
was altered by the learned trial court to one under section 366A
and 120B of the Indian Penal Code and Section 10 of the POCSO
Act. Learned counsel submits that under section 216 Cr.P.C., the
Court thus have the power to either suo motu alter charge or it
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can alter charge on an application filed by the prosecution and in
support of his contention he has referred to the case of Anant
Prakash Sinha @ Anant Sinha Vs. State of Haryana and
Another reported in (2016) 6 SCC 105.

Factual aspect of the case as would be evident from the
written report of the informant is that when he returned home
from his duty on 1.10.2005, his wife had told him that one
Subhash Kumar had taken away his daughter to the market but
she has not yet returned. It is alleged that the informant and his
wife tried to trace out their daughter but she could not be found
which led to institution of an FIR being Jamtara P.S. Case No. 353
of 2015. The victim on being recovered was examined on
10.10.2015 under section 164 Cr.P.C.. After conclusion of
investigation, chargesheet was submitted against the petitioners
under section 366A, 376(i)/34 of the Indian Penal Code, pursuant
to which cognizance was taken under section 366A of the Indian
Penal Code only. Subsequently the case was committed to the
court of Sessions and charge was framed under section 366 of
the Indian Penal Code against the petitioner no. 1 and under
section 366/120B of the Indian Penal Code against the petitioner
nos. 2 and 3. The case was transferred to the Court of learned
Additional Sessions Judge-1, Jamtara for disposal and during trial
the informant had filed an application for amendment of the
charge framed earlier to which the petitioners had also filed a
rejoinder. Ultimately by impugned order dated 16.2.2017,
learned trial court altered the charge to one under sections 366A
and 120B of the Indian Penal Code and Section 10 of the POCSO
Act.

The only question to be determined in this application is
whether the learned trial court had the power to entertain the
application preferred by the informant for amending/altering the
charge. Learned counsel for the petitioner has referred to the
judgment in the case of P. Kartikalakshmi (Supra), wherein
while considering the powers of the court under section 216
Cr.P.C. with respect to the maintainability of an application for
alteration of charge, it was held as follows:-

“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 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
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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 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.

7. We were taken through Section 221 and 222 Cr.P.C. in
this context In the light of the facts involved in this case, we are
only concerned with Section 216 Cr.P.C. We, therefore, do not
propose to examine the implications of the other provisions to
the case on hand. We wish to confine ourselves to the
invocation of Section 216 and rest with that. In the light of our
conclusion that the power of invocation of Section 216 Cr.P.C.
is exclusively confined with the Court as an enabling provision
for the purpose of alteration or addition of any charge at any
time before pronouncement of the judgment, we make it clear
that no party, neither de facto complainant nor the accused or
for that matter the prosecution has any vested right to seek
any addition or alteration of charge, because it is not provided
under section 216 Cr.P.C. If such a course to be adopted by the
parties is allowed, then it will be well-nigh impossible for the
criminal court to conclude its proceedings and the concept of
speedy trial will get geopardised.

8. In such circumstances, when the application preferred
by the appellant itself before the trial court was not
maintainable, it was not incumbent upon the trial court to pass
an order under Section 216 Cr.P.C.. Therefore, there was no
question of the said order being revisable under Section 397
Cr.P.C. The whole proceeding, initiated at the instance of the
appellant, was not maintainable. Inasmuch as the legal issue
had to be necessarily set right, we are obliged to clarify the law
as is available under Section 216 Cr.P.C. To that extent, having
clarified the legal position, we make it clear that the whole
proceedings initiated as the instance of the appellant was
thoroughly misconceived and vitiated in law and ought not to
have been entertained by the trial court. As rightly pointed out
by the learned Senior Counsel for Respondent 1, such a course
adopted by the appellant and entertained by the court below
has unnecessarily provided scope for protraction of the
proceedings which ought not to have been allowed by the court
below”.

Learned counsel for the informant has relied upon the
judgement in the case of Anant Prakash Sinha @ Anant
Sinha (Supra), wherein it was held as follows:-

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 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
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
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that the charge so framed 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.

22. Being of this view, this Court upheld the order passed by
the High Court. The said decision in Shiv Kumar case is, in our
opinion, is distinguishable on facts. 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 motu. In such a situation, we do not find any fault on the
part of the 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. We
also do not perceive any error in the revisional order by which
the revisional court has set aside the charge framed against the
mother-in-law. Accordingly, we affirm the order of the High
Court in expressing its disinclination to interfere with the order
passed in revision. We may clarify that the entire scrutiny is
only for the purpose of framing of charge and nothing else. The
learned Magistrate will proceed with the trial and decide the
matter as per the evidence brought on record and shall not be
influenced by any observations made as the same have to be
restricted for the purpose of testing the legal defensibility of the
impugned order.

In the of case of P. Kartikalakshmi (Supra), which was
delivered on 12th August, 2014, it was categorically held that no
party, neither defacto complainant nor the accused or for that
matter the prosecution has any vested right to seek any addition
or alteration of charge, because it is not provided under section
216 Cr.P.C. However, it has been indicated therein that the Court
can exercise its power under certain contingency which comes to
its notice or is brought to its notice. Necessity for alternation or
addition of charge, it may do so on its own and no order need be
passed for that purpose. Judgement in the case of Anant
Prakash Sinha @ Anant Sinha (Supra) was delivered on 4th
March, 2016, in which considering the provisions of Section 216
Cr.P.C., which were invoked on an application preferred by the
informant to add section 406 of IPC to the charge, it was held
therein that such application was in a way bringing to the notice
of the court about defects in framing of the charge. On the same
breath, it was also stated that the Court could have altered or
added the charge suo motu. The above noted judgements have
thrashed out the essence of Section 216 Cr.P.C. and although
different views have been discussed in the said judgements but
the common thread which runs through both the judgments are
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that the Court may alter or add charge either suo motu or if it
comes to the knowledge of the Court that a necessity had arisen
for the charge to be altered or added. The filing of an application
by the informant for alternation of charge in the present case
was by way of bringing to the notice of the learned trial court the
allegations so that charge be altered under sections 366A and
120B and Section 10 of the POCSO Act, which was duly accepted
by the learned trial court. Learned trial court could have altered
or added the charge suo motu but since the factual aspect was
brought to the notice of the learned trial court and on proper
consideration the power under section 216 Cr.P.C. was exercised
by the learned trial court and the charges were altered. Sufficient
reasonings have also been given by the learned trial court while
passing the impugned order dated 16.2.2017.

There being no error or illegality in the impugned
order dated 16.2.2017, I am not inclined to entertain this
application, which is accordingly dismissed.

(Rongon Mukhopadhyay, J)
Rakesh/

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