High Court
Case Details
Neutral Citation No. - 2024:AHC:159530 Court No. - 76 Case :- APPLICATION U/S 482 No. - 24605 of 2024 Applicant :- Pavan Kumar Giri Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shreesh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard Sri Aman Srivstava, Advocate, holding brief of Sri Shreesh Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record. 2. This application u/s 482 Cr.P.C. has been preferred for quashing of the entire
Facts
proceedings of S.T. No. 2958 of 2021 (State vs. Pawan Giri), arising out of Case Crime No. 591 of 2018, under Sections - 498-A, 307, 377 I.P.C., Police Station - Delhi Gate, District - Aligarh, pending in the court of Sessions Judge, Aligarh, as well as to quash the orders dated 21.05.2024 and 28.03.2022, passed by the Sessions Judge, Aligarh in the aforesaid case.
Legal Reasoning
10. It is 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. 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 needs to be passed for that purpose. In this connection a reference may be made to the case of Kartikalakshmi v. Sri Ganesh (2017) 3 SCC 4347. 11. In the instant matter, perusal of record shows that charges for offences under Sections - 498-A, 377, 307, 504, 506 I.P.C. were framed against applicant vide order dated 28.03.2022 and there is nothing to indicate that earlier the applicant has challenged the said order of framing of charge. After two years, the applicant has filed an application under Section - 216 Cr.P.C. with prayer that the charges framed against applicant be dropped. In fact the application filed by the applicant under garb under Section - 216 Cr.P.C. is seeking prayer of discharge, which is not permissible at the stage of trial, particularly when the applicant has not challenged the order of framing of charge earlier. The order dated 28.03.2022 is being challenged after more than two years. The prayer in respect of order dated 28.03.2022 suffers from undue delay and latches. No such facts could be shown, which may warrant any alteration in the charges or to discharge the applicant- accused. Considering all attending facts, it could not be said that impugned order dated 28.03.2022 is suffering from any material illegality or perversity. The application filed by applicant has been rejected by the trial court by a reasoned order. No such material illegality or perversity could be shown, so as to warrant any interference in the impugned order by invoking jurisdiction under Section - 482 Cr.P.C. The application u/s 482 Cr.P.C. lacks substance and thus, liable to be dismissed. 12. The application u/s 482 Cr.P.C. is hereby dismissed. Order Date :- 30.9.2024 S Rawat
Arguments
3. Learned counsel for applicant submitted that applicant is innocent and no prima facie case is made out against him. Before this case, the informant has lodged a first information report on 19.05.2014, wherein no allegations regarding offence under Section - 377 I.P.C. were made and in that matter on the basis of compromise between the parties, police have submitted final report. Thereafter, informant has lodged first information report of this case on 03.10.2016, making false and baseless allegations. After committal of the case to the session court, charges were framed against applicant for offences under Section - 498-A, 377, 323, 307, 504, 506 I.P.C. vide order dated 28.03.2022. During pendency of the trial, the applicant has moved an application under Section - 216 Cr.P.C. with prayer that there is no material on record to support the aforesaid charges under Section - 498-A, 377, 323, 307, 504, 506 I.P.C. and thus, the said charges be removed. Learned counsel has referred case of Sanjeev Gupta vs. State of U.P. and Another 2023 0 Supreme (All) 1605 and submitted that no charge under Section - 377 I.P.C. can be framed against applicant, who is husband of the opposite party no.2/complainant. Referring to facts of the matter, it was submitted that impugned order as well as entire proceedings of the aforesaid session trial are liable to be quashed. 4. Learned A.G.A. has opposed the application and submitted that the trial court has framed charges under Section - 498-A, 377, 323, 307, 504, 506 I.P.C. vide order dated 28.03.2022 and there was no such circumstance, so as to alter the charges or to remove the above said charges and discharge the applicant. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. So far as the prayer regarding quashing of entire proceedings is concerned, it appears that the charge sheet against applicant was filed several years back and after committal of case to the court of Session, charges were framed against applicant vide order dated 28.03.2022. There is nothing on record to show that earlier the applicant has challenged the order of framing of charge and thus, at this stage while the session trial is pending at the stage of prosecution evidence, no case of quashing of impugned proceedings is made out . 7. So far impugned order dated 21.05.2024 is concerned, by that order an application filed by the applicant-accused under Section - 216 Cr.P.C. has been rejected. 8. Before proceeding further, it would be appropriate to quote the provisions of Section - 216 Cr.P.C., which 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. (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." 9. From the above stated provisions, it is apparent that the court is authorized to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase "add to any charge" in Sub-Section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Thus, Section - 216 Cr.P.C. provides that the addition or alteration has to be done "at any time before judgment is pronounced. Section - 216 Cr.P.C. 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 Cr.P.C., 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.