High Court · 2025

1. Heard learned counsel for the applicant and learned AGA for the State.

2. This application u/s 528 BNSS has been preferred against order dated 15.07.2024, passed by learned Chief Judicial Magistrate, Bareilly in Criminal Case No. 1617 of 2022, arising out of Case Crime No. 368 of 2021 (State v. Ishhak and others), under Section 323, 324, 325, 504, 506 IPC, pending in the court of Additional Chief Judicial Magistrate (S.D.), District- Bareilly. The order dated 03.03.2025 passed by learned Additional Sessions Judge, Court No. 9, Bareilly in Criminal Revision No. 385 of 2024 is also being impugned, whereby the revision against order dated 15.07.2024 has been dismissed.

3. Learned counsel for the applicant submitted that applicant is informant of the aforesaid case and in the incident applicant was mercilessly assaulted by the opposite party nos. 2 to 5. The informant has alleged that opposite party no. 3- Tahabbur has attacked him with Kaanta. The informant has sustained several injuries. After investigation, police have submitted charge-sheet under Sections 323, 325, 504, 506 IPC. During trial, applicant has moved an application under Section 216 CrPC with prayer that charge be altered and charge under Section 326 IPC be also framed but that application has been rejected by the learned Chief Judicial Magistrate in arbitrary manner without considering facts and law. Learned counsel submitted that as per injury report, the injured has sustained incised and lacerated wounds at his body and there is visibly injury on parietal bone. As per X-ray report, he has suffered fracture of upper shaft of tibia. The applicant has suffered pain and difficulty in movement for about two and a half months. The trial court has framed charges under Sections 323, 324, 325, 504, 506 IPC. It was submitted that applicant was also assaulted with 'Kaanta', which is a cutting weapon and thus, a case under Section 326 IPC was made out. The impugned order dated 15.07.2024 passed by the learned Chief Judicial Magistrate, Bareilly is against facts and law. Similarly, Revisional Court has also not considered the facts in correct perspective and revision was dismissed in an arbitrary 2 NA528 No. 18916 of 2025 manner. Referring to facts of the matter, it was submitted that both the impugned orders are liable to be quashed.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned orders.

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 empowered 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 CrPC 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 3 NA528 No. 18916 of 2025 (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.

8. It is also well settled that the power under Section 216 CrPC 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. In this connection a reference may be made to the case of Kartikalakshmi v. Sri Ganesh (2017) 3 SCC 4347.

9. Considering aforesaid position of law, in the instant case it appears that application filed by applicant under Section 216 CrPC has been rejected by a reasoned order. Learned trial court has considered facts and injury report and observed that no case for alteration/ addition of charge is made out. The injured has not sustained any fracture at vital part of his body. No material illegality or perversity could be shown in the order passed by the learned trial court. As observed earlier, the power u/s 216 CrPC 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. Further, revision against the order of trial court has already been dismissed. It is well-settled that when revision against order of Magistrate has been dismissed, in such case interference in order of Magistrate under Section 528 BNSS can be made only when there is miscarriage of justice or to prevent abuse of process of Court. In the instant matter, no such contingency is made out. Considering the entire facts and position of law, no case for interference in the impugned orders by invoking powers under Section 528 BNSS is made out. 4 NA528 No. 18916 of 2025

10. The application under Section 528 BNSS is dismissed. Order Date :- 12.8.2025 Rama Kant RAMA KANT High Court of Judicature at Allahabad