The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 4118 of 2023 Annapurna Behera & another …. Petitioners Mr. Tusar Kumar Mishra, Advocate -versus- State of Odisha & others …. Opp. Parties
Legal Reasoning
Mr. B.K. Ragada, AGA CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 13.11.2023 04. 1. Heard learned counsel for the Petitioners and the State. 2. By means of the present application, the Petitioners seek indulgence of this Court with the prayer to set aside the order dated 02.06.2023 passed by the learned First Additional Sessions Judge, Puri in S.T. No.11/33 of 2019/2018 arising out of G.R. Case No.447 of 2017 corresponding to Puri Town P.S. Case No.3 of 2017. 3. The background facts of the case are that the Opp. Parties/accused persons are facing trial for commission of the offence under Sections 302/324/307/34, I.P.C. After completion of the investigation, Charge-Sheet was submitted in the case against the accused persons for the offences under Sections 324/307/302/120-B/201/34, I.P.C. and Section 25 & 27 of Arms Act, keeping the investigation open. The learned S.D.J.M., Puri took cognizance of the said offences, Page 1 of 7 // 2 // and the case was later committed to the court of the sessions and was transferred to the court of 3rd Addl. Sessions Judge, Puri. The learned 3rd Addl. Sessions Judge, Puri while framing the charge, found the offences to be under Sections 302/307/324/201/34, I.P.C. and Sections 25(1-A) & 27 of the Arms Act made out and framed charges excluding the offence U/s. 120-B IPC. 4. According to Mr. Mishra, the learned counsel for the Petitioners, as many as 18 witnesses have been examined so far in the case except the informant. He further submits that the witnesses have deposed a criminal conspiracy to have been hatched between the accused persons, whereas the court did not frame charge against the accused persons in the offence under Section 120-B, I.P.C. He further submitted that law mandates that once it is brought to the notice of the court as to any material available for bringing an alternation in the charge, the court ought to have acted there upon. 5. Learned AGA Mr. Ragada, on the contrary vehemently opposed the aforesaid contentions of the learned counsel for the Petitioners and contended that the matter has been set at rest by pronouncements of the Apex Court besides the law being clear in the issue and the parties in either sides have no right to interfere in bringing the alternation / addition in the charge and it is the absolute prerogative of the court either suo motu or if brought to its notice, to bring such alternation or addition before conclusion of the trial. 6. Perusal of the case record reveals that, on a motion moved from the side of the prosecution to that effect, the learned court declined to accept the prayer, inter alia, on the ground that “…..In the present case 16 witnesses have been examined so far. Most of them have Page 2 of 7 // 3 // turned hostile. The informant has not been examined yet. After going through the evidence of the witnesses, I am of the opinion that there is no sufficient material yet available on record to add Section 120(B) of the I.P.C. to the charges framed earlier. So in my opinion the petition filed by the learned Addl. P.P. is premature and is accordingly rejected. However, it is observed that if subsequently sufficient material is brought on record in that regard, the learned Addl. P.P. is at liberty to renew his prayer. With these observations, the petition is disposed of.” 7. In the matter of P. Kartikalakshmi vs. Sri Ganesh & another (2017) 3 SCC 347, the Apex Court has held as under – the judgment “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 CrPC empowers the Court to alter or add any is time before charge at any 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 Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC 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 Page 3 of 7 // 4 // 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 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. 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 CrPC 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 CrPC. 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 jeopardized.” 8. Further, in the case of CBI vs. Karimullah Osan Khan, (in Criminal Appeal No.1127 of 2009 decided on 04.03.2014) the Apex Court held as under – “12. This Court in Jasvinder Saini and Ors. v. State Delhi) (Government MANU/SC/0642/2013: (2013) 7 SCC 256, had an occasion to examine the scope of Section 216 of the Code of Criminal Procedure and held as follows : NCT of of Page 4 of 7 // 5 // the judgment is made before 11. …... the court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. 12. In the case at hand the evidence assembled in the course of the investigation and presented to the trial court was not found sufficient to call for framing a charge under Section 302 Indian Penal Code… 13. The Privy Council, as early as in Thakur Shah v. Emperor, MANU/PR/0025/1943: AIR 1943 pc 192, spoke on alteration or addition of charges as follows: The alteration or addition is always, of course, subject to the limitation that no court should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred. Page 5 of 7 // 6 // 14. Section 216 Code of Criminal Procedure gives considerable powers to the Trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused. 15. Section 216 Code of Criminal Procedure confers jurisdiction on all Courts, including the designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and Sub- sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 Code of Criminal Procedure, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court. (See Harihar Chakravarty v. State of West Bengal, MANU/SC/0119/1953: AIR 1954 SC 266. Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in Section 216 Code of Criminal Procedure and other related provisions.)” Page 6 of 7 // 7 // 9. Coming back to the case in hand, this Court finds force in the submissions of the learned AGA. In the backdrop of the principles enunciated as above, the submissions advanced by Mr. Mishra insisting for an interference to direct the learned court to alter the charge stands abrogated, more so for the reason that in the impugned order, the learned court below has categorically held that the prayer made from the side of the Addl. P.P. is premature and in case subsequently sufficient material is brought on record, liberty has been given to the Addl. P.P. to renew his prayer. 10. In that view of the matter, this Court finds no illegality committed by the learned court below. The impugned order, therefore, suffers no infirmity and requires no interference. The CRLMC is dismissed accordingly. Judge (Chittaranjan Dash) S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 14-Nov-2023 19:23:34 Page 7 of 7