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Quash u/s 482 Cr.P.C for framing the additional charge, Cr.P.C 216/226/227

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 77

Case :- APPLICATION U/S 482 No. – 32237 of 2019

Applicant :- Harvindar And 3 Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Sunil Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Chandra Dhari Singh,J.
This petition under section 482 Cr.P.C. has been filed with the prayer to quash the order dated 05.08.2019 passed on the application No.99-B framing the additional charge by the Additional Sessions Judge, Court No.2 Bulandshahar in Sessions Trial No.234 and 620 of 2015 arising out Case Crime No.207 of 2014 (State vs. Harvinder and others) under sections 147, 148, 302/149 I.P.C., Police Station Salempur, District Bulandshahar.

Learned counsel appearing on behalf of the applicants has submitted that the learned court below did not appreciate the provisions of law and did not follow the rule of justice, moreover, the trial court did not apply its judicial mind over the facts of the case as well as the evidence on record including the statements of the witnesses recorded before the court below prior to summon the applicants for facing the trial. It has also been submitted that the court below has altered the charges merely on the basis of its prima facie case that the prosecution has already been adduced his evidence of three prosecution witnesses of fact. It has further been submitted that the learned Trial Court is supposed to find out morethan prima facie case which ultimately lead the possibility of conviction of the accused if the evidence remain intact for the charge which is proposed to add or alter in the order impugned but the learned trial court has simply noted that he is competent to add or alter the charge even the basis of suspect. Learned counsel also submitted that the learned trial court did not apply his judicial mind that the stage of farming of charge had already been covered as the charge has already been framed and the prosecution has already been examined the witnesses. Learned counsel for the applicants further submitted that in the pending trial, the norms are different to alter or add the charge under section 216 Cr.P.C. to that of frame of charge under section 226 Cr.P.C. or 227 Cr.P.C. which authorized to him to frame the charge even on the basis of suspect.

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Learned counsel for the applicants has submitted that at the stage of 216 Cr.P.C. the court has to satisfy that the sufficient evidence is on record for altering the charge against the accused persons. In support of his arguments, learned counsel for the applicants has relied on a judgment of Hon’ble the Apex Court in the case of Hasan Bhai Vali Bhai Qureshi vs. State of Gujrat and others reported at 2005 (3) JIC 509 (relevant paras 8, 9 & 10), wherein it has been held that if during trial, the trial court on consideration of board probabilities of the case based upon total effect of the evidence and document produced, is satisfied that any addition or alternation of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate. In the instant case, the court below has not considered the entirety of the matte and passed the impugned order.

Learned counsel for the applicants has submitted that keeping in view the facts and circumstances of the case and the law settled by this Court as well as by the Hon’ble Apex Court, the impugned order dated 05.08.2019 is liable to be set aside as it suffers from procedural and jurisdictional error, which is apparent on the face of record.

Per contra, learned counsel appearing for the State has vehemently opposed the submissions made by the learned counsel for the applicants and submitted that while altering the charge vide the impugned order dated 05.08.2019, the court below has considered the entirety of the matter and also considered the statements of the prosecution witnesses and after satisfying the same passed the impugned order. Learned counsel for the State has also submitted that the arguments, which were led by the learned counsel for the applicants as well as the contentions made cannot be dealt with at the stage of 216 Cr.P.C. He has also stated that there are no illegality and error committed by the court below while passing the order. Therefore, this court may not exercise its extraordinary jurisdiction under section 482 Cr.P.C. to intervene in the order impugned.

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I have heard learned counsel for the parties and perused material available on record.

I have perused the order dated 05.08.2019. The learned court below, while altering the charge, has given the specific reasons for exercising its power as vested under section 216 Cr.P.C. in paras 2 & 3 of the impugned order.

The arguments which were advanced by the learned counsel for the applicants has also been dealt with by the court below while passing the impugned order dated 05.08.2019. The documents and the contentions made in this application cannot be dealt with at the stage of deciding the application under section 216 Cr.P.C. by the court below. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial.

After perusal of the record and the contentions made in the petition as well as well as the submissions made by the parties, I do not find any substantial ground which may justify interference by this Court under Section 482 Cr.P.C.

The application under section 482 Cr.P.C. is rejected.

Order Date :- 12.9.2019

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