High Court
Case Details
Neutral Citation No. - 2024:AHC:158414 Court No. - 76 Case :- APPLICATION U/S 482 No. - 32813 of 2024 Applicant :- Tribhash @ Pinku Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Brij Bhushan Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been preferred against order dated
Facts
14.08.2024, passed by the learned Sessions Judge, Firozabad, in S.T. No.302 of 2011 (State Vs. Vijay Pal and others), arising out of Case Crime No.151A of 2002, under Sections 324, 504 I.P.C., Police Station- Khairgarh, District- Firozabad, whereby the application filed by applicant/informant under Section 216 Cr.P.C. for addition of charge under Section 307 IPC has been rejected.
Legal Reasoning
8. 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 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 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. 9. In the instant matter, perusal of record shows that informant has lodged first information report against four named accused persons, alleging that they have fired a shot at the informant with intention to kill him and resultantly, informant has sustained injury at his left hand. As per statement of concerned doctor/P.W.2, a pallet injury was shown at the left hand of the informant/injured but no fracture was shown. Considering the said injury, it appears that the injury was simple in nature. It also appears from record that earlier applicant has filed an application under Section 216 Cr.P.C. for addition of charge under Section 307 IPC, which was rejected by the trial Court vide order dated 06.10.2015 and that order remained unchallenged. In view of these facts, it could not be said that a case for addition of charge under Section 307 IPC is made out. The application field by the applicant has been rejected by a reasoned order. Considering the entire facts, no case for calling any interference in the impugned order by invoking provisions of Section 482 Cr.P.C. is made out. The application u/s 482 Cr.P.C. lacks merit and thus, liable to be dismissed. 10. The application u/s 482 Cr.P.C. is hereby dismissed. Order Date :- 27.9.2024 SP/-
Arguments
3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus, liable to be set aside. Applicant is informant of the case. In the incident, the informant has sustained firearm injury and the facts clearly show that the bullet was fired at informant with intention to kill him and thus, a case under Section 307 IPC is made out. Applicant has filed an application under Section 216 Cr.P.C. with prayer that charge under Section 307 IPC be also framed against the accused persons but the the trial Court has rejected the application merely on the ground that earlier an application for alternation of charge was rejected. It was submitted that charge can be altered at any stage. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside. 4. Learned A.G.A. has opposed the application and submitted that earlier in pursuance to order dated 03.09.2013 passed by this Court, the applicant has moved an application for alteration of charge, which was rejected by the trial Court vide order dated 06.10.2015 and that order was not challenged and thereafter, applicant has filed application under Section 216 Cr.P.C. with same prayer of alternation of charge, which has been rejected by the impugned order. 5. I have considered the rival submissions and perused the record. 6. Before proceedings further it would be appropriate to quote the provisions of Section 216 CrPC 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." 7. 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 CrPC 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 CrPC, 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.