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Mahender Singh vs State Of Nct Of Delhi & Ors on 6 February, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. M.C. 4095/2018 CRL. M.A. 29947/2018

Reserved on : 31.01.2020
Pronounced on : 06.02 .2020

IN THE MATTER OF:
MAHENDER SINGH ….. Petitioner
Through: Mr. Vivek Sood, Sr. Adv. with Ms.
Saumya Gupta and Mr. Siddharth
Gupta, Advs.
versus

STATE OF NCT OF DELHI ORS. ….. Respondents

Through: Mr. Amit Chadha, APP with SI Prem
Kumar.

Mr. Dipanshu Chugh, Adv. for R-2 to
R-4.

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present petition has been directed against the order dated
24.07.2018 vide which the trial court has dismissed the
petitioner/complainant’s application seeking clarification with respect to
addition of charge under Section 304 Part I IPC besides the charge for the
offence punishable under Section 498A/34 IPC and Section 304B/34 IPC.

2. Learned Senior Counsel for the petitioner submitted that the
impugned order came to be passed in application filed on behalf of the State
under Section 216 Cr.P.C. seeking clarification and for framing of additional
charge under Section 302/34 IPC.

3. Briefly, the facts necessary for the disposal of the present case, are

CRL. M.C. 4095/2018 Page 1 of 7
that the petitioner is the father of the deceased. The deceased got married to
Ravinder Singh/Respondent no.2 on 21.02.2008. An information vide DD
No. 97-B was received on 24.09.2010 regarding the death of the deceased in
Safdurjung Hospital. After investigation, a charge-sheet was filed against
the respondents under Sections 498A/304B/406 IPC.

4. The trial court vide order dated 21.01.2013, framed charge against
Ravinder Singh/respondent no.2 for the offence punishable under Section
498A/304 Part I IPC. On receiving supplementary challan, similar charge
was framed on 12.09.2013 against Mahender Singh/Respondent no.3
(father-in-law) and Harbans Kaur/Respondent no. 4 (mother-in-law).

5. Aggrieved with non-framing of charge under Section 304B IPC as
well as Section 406 IPC, the petitioner approached this Court in Crl. Rev. P.
578/2013. While disposing of the above petition vide order dated 13.10.2014
and noting, the demand of dowry; death of the victim in unnatural
circumstances within seven years of marriage and the opinion in the post-
mortem report stating cause of death as uterine rupture because of
intrusion/manipulation of foreign object, the Court came to the opinion that
the impugned order discharging the accused persons under Section 304B
IPC suffered from infirmity and the same was set aside. The trial court was
directed to frame charge under Sections 304B/34 IPC against all the
respondents. The Court also noted that neither arguments were addressed
nor any evidence was collected by the Investigating Agency with respect to
offence under Section 406 IPC.

6. Learned Senior Counsel for the petitioner has submitted that the trial
court misinterpreted the aforesaid order dated 13.10.2014 and vide its order
dated 14.11.2014, modified the order on charge and framed charge for the

CRL. M.C. 4095/2018 Page 2 of 7
offence punishable under Sections 498A/34 IPC and 304B/34 IPC against
the respondents.

7. Learned Senior Counsel for the petitioner submitted that there was no
ambiguity in the order dated 13.10.2014 passed by this Court and the trial
court ought to have framed additional charge under Section 304B/34 IPC
instead of replacing charge under Section 304 Part I IPC with the charge
under Section 304B IPC.

8. Learned counsel for the respondents has supported the impugned
order and submitted that the trial is pending at the stage of final arguments
and the present petition is nothing but an attempt to delay the trial by the
complainant.

9. I have heard the learned counsels for the parties and gone through the
case record.

10. The deceased got married to respondent no.2 on 21.02.2008. The
witnesses have deposed about the allegations with respect to dowry demand.
The death has taken place within three years of marriage. The doctor who
conducted the post-mortem of the deceased has opined that the death was
due to haemorrhagic shock consequent upon uterine rupture. By subsequent
opinion, he opined that the rupture of uterus was suggestive of being the
damage caused by introduction and manipulation of foreign
object/instrument in the uterus.

11. Section 216 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.

CRL. M.C. 4095/2018 Page 3 of 7

(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.”

12. The trial in the present case is still pending at the stage of final
arguments which are yet to be advanced. Section 216 Cr.P.C. provides the
Trial Court an exclusive and wide-ranging power to change or alter any
charge. Sub-Section (1) provides that the Court can alter or add any charge
at any time before a judgment is pronounced. In P.Kartikalakshmi v. Sri
Ganesh reported as (2017) 3 SCC 347, the Supreme Court held as under:-

“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
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

CRL. M.C. 4095/2018 Page 4 of 7
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 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.”

13. The test to be adopted by the Court while deciding upon an addition
or alteration of charge is that the material brought on record during the
course of trial needs to have a direct link or nexus with the ingredients of
alleged offence. [Refer: Anant Prakash Sinha v. State of Haryana reported as
(2016) 6 SCC 105 and Dr. Nallapareddy Sridhar Reddy v. The State of
Andhra Pradesh Ors. reported as 2020 SCC OnLine SC 60]

14. Another aspect to be kept in mind while exercising powers under
Section 216 Cr.P.C. is to see that no prejudice is caused to the accused. It is
the duty of the Court to ensure that no prejudice is caused to the accused and
he is allowed to have a fair trial. Sub-Section (3) of Section 216 Cr.P.C.
provides that the Court may proceed with the trial as if the additional or
alternative charge is the original charge, if such alteration or addition does
not cause prejudice to the accused. Sub-Section (4) provides that the Court
can either direct a new trial or adjourn the trial for such period as may be
necessary to mitigate the prejudice likely to be caused to the accused in case
of addition or alteration of charge. In Anant Prakash Sinha (Supra), the

CRL. M.C. 4095/2018 Page 5 of 7
Supreme Court held that:

“19. In addition to what we have stated hereinabaove,
another aspect also has to be kept in mind. It is
obligatory on the part of the court to see that no
prejudice is caused to the accused and he is allowed to
have a fair trial. There are in-built safeguards in
Section 216 Cr.P.C.. It is the duty of the trial court to
bear in mind that no prejudice is caused to the accused
as that has the potentiality to affect a fair trial..”

To the similar effect is the decision in CBI v. Karimullah Osan Khan
reported as (2014) 11 SCC 538.

15. In Rajbir @ Raju Anr. v. State of Haryana reported as (2010) 15
SCC 116, the Supreme Court, while taking a serious view of crime against
women, directed all the trial courts to ordinarily add Section 302 IPC to the
charge of Section 304B IPC. However, later in Jasvinder Saini Ors. v.
State (Government of NCT of Delhi) reported as (2013) 7 SCC 256, the
Supreme Court has clarified that the charge under Section 302 IPC should
not be framed mechanically.

16. Learned counsels for the parties concede that at the time of arguing
the aforesaid Criminal Revision Petition no. 578/2013 before the Court, the
aforesaid dicta of the Supreme Court was not brought to its notice. Be that
as it may, a perusal of order dated 13.10.2014 passed in the aforesaid
petition reveals that the thrust of the order was addition of charge and not
replacement. The trial court completely misread the order.

17. In view of the aforesaid encapsulation of law and the facts of the
present case, it is directed that the trial court shall frame the additional
charge under the appropriate sections in terms of the evidence which has
come on record against the respondents and thereafter, proceed with the

CRL. M.C. 4095/2018 Page 6 of 7
matter in terms of the provisions of Sections 216 and 217 Cr.P.C.

18. With the aforesaid directions, the present petition is disposed of
alongwith the pending application.

19. A copy of the order be communicated to the trial court.

(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 06, 2020
ga

CRL. M.C. 4095/2018 Page 7 of 7

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