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Kuldeep vs State Of U.P. on 5 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 01.04.2019

Delivered on 05.07.2019

Case :- APPLICATION U/S 482 No. – 10708 of 2019

Applicant :- Kuldeep

Opposite Party :- State Of U.P.

Counsel for Applicant :- Tripurari Krishna Dwivedi, Vishesh Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Neeraj Tiwari,J.

Heard Sri Vishesh Kumar, learned counsel for the applicant and learned AGA for State.

The present application has been filed to quash the order dated 25.01.2019 passed by Additional District Judge, Court No. 16 in S.T. No. 950 of 2015, arising out of case crime no. 146 of 2015, under Sectionsections 323, Section324, Section504, Section506, Section308 I.P.C., P.S. Kithor, District Meerut.

Learned counsel for the applicant submits that the applicant has moved an application dated 30.01.2018 under Sectionsection 216 Cr.P.C. for adding charge under Sectionsection 307 I.P.C. on which learned Magistrate has written note “seen, put up at the stage of arguments.” He further submits that after closure of prosecution evidence, applicant has moved an application on 25.01.2019 before the court below for disposal of application dated 30.01.2018, which was rejected on the ground that “order passed before has not been challenged now again the application is moved on same grounds hence rejected.” He further submits that the order dated 25.01.2019 is bad and liable to be set aside and direction may be issued to learned Magistrate to decide the application dated 30.01.2018 as well as 25.01.2019 considering the provision of Section 216 Cr.P.C.

Learned AGA submits that informant has no right to move any application under Sectionsection 216 Cr.P.C. for alteration of charge at any stage of trial upto pronouncement of judgement. In support of his contention, he has placed reliance upon the judgement of Apex Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and another; (2017) 2 SCC (Cri) 84 and on the basis of that submits that applicant has no vested right to move any application for alteration of charge and it is an enabling provision under Sectionsection 216 Cr.P.C. for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice before pronouncement of judgement. Lastly, he submits that once the application is not maintainable, it is not required for trial court to pass any order under Sectionsection 216 Cr.P.C. and even application is rejected by the court below, prosecution or defence has no right to challenge the same in light of law laid by the Apex Court in the case of P. Kartikalakshmi (Supra).

Learned counsel for the applicant refuted the argument made by learned AGA and placed reliance upon the judgement of Apex Court in the case of Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana and another; 2016 CRI.L.J. 1836 and submits that Magistrate is bound to pass order on the application moved by applicant under Sectionsection 216 Cr.P.C. He has also placed reliance upon Full Bench judgement of this Court in the case of Ganga Saran Vs. Civil Judge, Hapur; AIR 1991 ALLAHABAD 114 and submits that if there are two judgements on one point, the judgement, which pronounced later shall prevail to earlier judgement. He has also placed reliance upon the judgement of this Court in the case of Harveer Singh Vs. State of U.P. and another; 2018 (3) JIC 575 (All) in which both the judgements of the Apex Court i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra) have been considered. He submits that in that case, court below has refused to alter the charge against which revision was filed, which was allowed and Magistrate was directed to commit the case to sessions court under Sectionsection 307 I.P.C. Against the order of revisional court, writ petition was filed before this Court, which was also allowed after having discussion of both the judgements given by the Apex Court i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra). He further submits that the application may be allowed and learned Magistrate may be directed to decide the application of the applicant under Sectionsection 216 Cr.P.C. on merit. He submits that under the provisions of SectionCr.P.C., applicant is not remedy-less and he can file appeal under the provisions of SectionCr.P.C., if application under Sectionsection 216 Cr.P.C. is rejected.

I have considered the rival submissions made by learned counsel for the parties as well as perused the record and the judgements relied upon.

Issue in question i.e. prosecution or accused has any right for alteration of charges under Sectionsection 216 Cr.P.C. For ready reference Sectionsection 216 Cr.P.C. is quoted herein below;

“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.”

It has been dealt in detail in the matter of P. Kartikalakshmi (Supra). Paragraphs 6, 7 and 8 of the said judgment are quoted below:-

“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 vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alternation 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 Sections 221 and Section222 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 not 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 jeopardised.

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 Sectionsection 216 Cr.P.C. Therefore, there was no question of the said order being revisable under Sectionsection 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 at 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.”

In the aforesaid paragraphs, Apex Court has clearly held that application preferred by the applicant before trial court is not maintainable, it was not incumbent upon the trial court to pass order under Sectionsection 216 Cr.P.C., therefore, there is no question of said order being revisable under Sectionsection 397 Cr.P.C. The Court has held that it is only upon the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice, meaning thereby application can be moved to bring the facts into notice of the Court but, now it is upon the Court to pass any order or not.

Learned counsel for the applicant has placed reliance upon paragraph 20 of the judgement of Apex Court in the case of Anant Prakash Sinha @ Anant Sinha (Supra). In the said judgement, Apex Court is of the view that application can be moved under Sectionsection 216 Cr.P.C. and the trial court is bound to pass order. Paragraph 20 of the said judgment is quoted below:-

20. Being of this view, this Court upheld the order passed by the High Court. The said decision 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 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 it 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 said matter, issue before the Court was that whether application moved by the private counsel on behalf of informant could have been entertained or not and Court has held that moving application is nothing but bringing into the notice of the learned Magistrate about the defect in framing of the charge. Court could have done it suo motu or being brought into its notice, therefore, there is no infirmity and illegality, if the charges are altered on the application filed by a private counsel on behalf of informant. Therefore, it is very much clear that the subsequent judgement is not contrary to earlier judgement i.e. P. Kartikalakshmi (Supra) and it is in consonance with earlier judgement affirming the law laid down by the Apex Court in the first judgement. He has also placed reliance upon Full Bench judgement of this Court in the case of Ganga Saran (Supra) and submitted that in case, if there are two judgements on the same point, later judgement shall prevail over the earlier judgement. Full Bench judgement is not applicable in the present case as both the judgements i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra) are not contrary to each other, but in consonance with each other. Lastly, he has placed reliance upon the judgement of this Court in the case of Harveer Singh (Supra), where according to learned counsel for the applicant, Court after considering both the judgements, has affirmed the order of revisional court by which Sectionsection 307 I.P.C. was added in the charges after rejection of application by the Magistrate. I have perused the said judgement. Though in the said judgement, there is reference of both judgements i.e. P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra), but only after reference, Court has proceeded to pass order on the facts of the case without giving any finding that why in light of both the judgements of Apex Court, learned Magistrate is bound to pass order and revisional court has rightly exercised its jurisdiction. In fact, while deciding the application, Court has not considered the law laid down by the Apex Court in the cases of P. Kartikalakshmi (Supra) and Anant Prakash Sinha @ Anant Sinha (Supra), therefore, the same cannot be followed as it is contrary to law laid down by the Apex Court and further does not give finding in judgement for not following both the judgements of the Apex Court, which clearly say that no party has any right to move application under Sectionsection 216 Cr.P.C. for alteration of charges.

Therefore, considering the facts and circumstances of the case as well as law laid down by the Apex Court, this fact is very much clear that under Sectionsection 216 Cr.P.C., neither prosecution nor defence has any right for alteration of charges and their right only confined to bring some evidence or fact into the notice of Court for alteration of charge, but thereafter it is only upon the Court to alter the charge or reject the application for alteration of charges.

There is no merit in the application. Accordingly, the application is dismissed.

No order as to costs.

Order Date :- 05.07.2019

Arvind

 

 

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