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A.F.R.
Neutral Citation No. - 2023:AHC:242512
Reserved on 07.08.2023
Delivered on 22.12.2023
Court No. - 90
Case :- APPLICATION U/S 482 No. - 17003 of 2023
Applicant :- Om Prakash @ Jani
Opposite Party :- State of U.P.
Counsel for Applicant :- Chandrakesh Mishra,Abhishek
Kumar Mishra,Sr. Advocate
Counsel for Opposite Party :- G.A.,Raj Kumar Kesari
Hon'ble Dinesh Pathak,J.
1. Heard Sri Daya Shankar Mishra, learned Senior Counsel
assisted by Sri Abhishek Kumar Mishra, learned counsel for
applicant and Sri Raj Kumar Kesari learned counsel for
opposite party No.2 as well as learned AGA for the State.
2. Learned counsel for opposite party No.2 has refused to
file any counter affidavit in the instant matter, therefore, present
application is being decided on merits with the consent of
learned counsel for the parties.
3. The applicant has invoked the inherent jurisdiction of this
Court under Section 482 Cr.P.C. assailing the order dated
23.11.2022 passed by Additional District & Sessions Judge,
Court No.3, Varanasi in Sessions Trial No. 651 of 2020 arising
out of Case Crime No. 300 of 2005, under Sections 372, 373
I.P.C. and Sections 3, 4, 5, 6, 9 of Immoral Traffic (Prevention)
Act, 1956, Police Station Manduwadih, District Varanasi.
4. An FIR, being Case Crime No. 300 of 2005, under
Sections 373, 373 I.P.C. and under Sections 3, 4, 5, 6, and 9 of
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Immoral Traffick (Prevention) Act, 1956 has been lodged by the
Police Inspector. Some young girls have been recovered from
two different places. Charge sheet has been submitted against
two accused persons, however, present applicant was neither
named in the FIR nor arraigned in the charge sheet as an
accused. Ultimately, Sessions Trial No. 161 of 2006 was
concluded convicting both accused and the same was affirmed
by this Court in Crl. Appeal No. 5583 of 2016 vide order dated
05.08.2019. During this period an application dated 22.06.2010
(Annexure-2) has been moved under Section 319 Cr.P.C. to call
upon the eight persons including present applicant as an
accused for trial together with other co-accused. The said
application was rejected by the trial court vide order dated
24.05.2021. High Court, on application being filed under
Section 482 Cr.P.C. No. 29267 of 2011, has relegated the parties
before the trial court with a direction to reconsider the
application under Section 319 Cr.P.C., vide order dated
14.09.2011. Learned trial court, after remand, has passed the
order dated 07.01.2012 with a direction that the matter may be
reinvestigated under Section 173(8) Cr.P.C. In pursuance
thereof, after due investigation, Investigating Officer has
submitted the supplementary charge sheet dated 17.07.2020
(Annexure No.22) arraigning the present applicant under
Sections 3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act,
1956 and under sections 372 and 373 I.P.C. Considering the
supplementary charge sheet dated 17.07.2020, learned trial
court has framed the charges against the present applicant vide
order dated 20.10.2020 (Annexure No.15). At later stage,
prosecution has moved an application dated 12.03.2021 (Paper
No.10 Kha) (Annexure-20) beseeching frame one additional
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charge under Section 376 I.P.C. against the present applicant.
Learned trial court, vide order impugned dated 23.11.2022
(Anneuxre-21), has allowed the aforesaid application (Paper
No.10 Kha) and fix next date 18.12.2022 for framing of
additional charge against the present applicant. On the pointed
query raised to the learned counsel for the parties they have
stated that till date charge has not been framed under Section
376 I.P.C. Having been aggrieved, with order dated
23.11.2022, allowing the application (Paper No.10 Kha),
applicant (accused) has invoked the inherent jurisdiction of this
Court by moving the present application.
5. Learned counsel for the applicant has advanced three fold
submissions before this Court. First relating to the
maintainability of the application dated 12.03.2021 (Paper
No.10 Kha) on the ground that the prosecution or any other
interested persons have no locus standi to move any application
before the court concerned for alteration or addition of charges
under Section 216 Cr.P.C. In support of this submission, learned
counsel for the applicant placed reliance upon the judgment of
Hon'ble Supreme Court in the case of P. Kartiklakshmi Vs. Sri
Ganesh and Another reported in (2017) 3 SCC 347, Sushil
Dhameja and Another Vs. State of U.P. and Another decided
by co-ordinate Bench of this Court vide order dated
18.04.2023 passed in Application U/s 482 Cr.P.C. No. 12344 of
2023 and Kuldeep Vs. State of U.P. decided by co-ordinate
Bench of this Court reported in 2019 2 ACR 1947. He has
placed reliance as well upon the judgment of Madras High
Court in the case of Krishnammal Vs. The Revenue Divisional
Officer and others reported in (2008) 0 CrLJ2845. Second
submission raised by learned counsel for applicant is that no
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additional material is available on record to frame additional
charge indicting the present applicant under Section 376 I.P.C.
Thirdly, learned counsel for the applicant has tried to challenge
the sanctity and genuineness of statement made by victim u/s
161 Cr.P.C. during re-investigation and submits that the
statement of victim under Section 161 Cr.P.C. as referred in the
order dated 23.11.2022 was not recorded, in accordance with
law, during re-investigation. It is further submitted that from
perusal of the record, prima facie, it appears that alleged
statement of victim was got recorded by some lady Constable
namely, Poonam Verma. It was not recorded by Investigating
Officer, therefore, same cannot be treated to be part of the reinvestigation. It is next submitted that under Section 13(2) of
Immoral Traffic (Prevention) Act, 1956, the Special Police
Officer shall not be below the rank of an Inspector of Police,
whereas instant matter statement was get recorded by the police
constable which has got no sanctity in the eye of law. In support
of his submission learned counsel for applicant has cited the
case of Delhi Administration Vs. Ram Singh 1962 0 AIR (SC)
63. It is further submitted that learned trial court has illegally
made an observation in its order dated 23.11.2022 that the
victim in her statement recorded under Section 161 Cr.P.C. has
made allegations of rape against the present applicant.
However, in her initial statement recorded under Section 164
Cr.P.C. no such allegation was made by the victim against the
present applicant. Lastly, it is submitted that the order dated
23.11.2022 passed by learned trial court is liable to be quashed
being illegal, unwarranted under the law and tainted with
irregularities.
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6. Per contra, learned counsel for the respondent no. 2 has
contended that in present application, applicant has not
challenged the entire criminal proceeding except an order
impugned dated 23.11.2022 by which application (Paper No.
10Kha) has been allowed for the purposes of indicting the
accused under Section 376 I.P.C. It is further contended that the
application (Paper No. 10Kha) cannot be treated to be an
independent application rather it is a piece of information given
to the court concerned for the irregularity in the proceedings
wherein statement under Section 161 Cr.P.C. has not properly
been appraised by the the Court concerned, consequently
offence under Section 376 I.P.C. has been left out to be
considered. It is further contended that the victim/ prosecutrix
being a lady has to be examined by the lady officer, therefore,
her statement has rightly been recorded by lady constable
namely, Poonam Verma on the instructions of the Investigating
Officer. Learned counsel for the respondent has drawn attention
of the Court towards the second proviso to sub-section 3 of
Section 161 Cr.P.C. wherein lady police officer has been
entrusted to record the statement of a woman against whom
offence under several sections of I.P.C. including Section 376
I.P.C. has been committed. He has also placed reliance on the
provisions as enunciated under Section 15, sub-Section 6-A, of
the Immoral Traffic Act wherein victim is required to be
interrogated by the woman police officer. Lastly it is contended
that learned trial court has rightly passed order impugned dated
23.11.2022, which does not warrant any indulgence of this
Court in exercise of inherent jurisdiction under Section 482
Cr.P.C., therefore, the instant application is liable to be rejected
being misconceived and devoid of merits.
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7. In reply, learned counsel for the applicant submits that the
copy of statement of victim under section 161 Cr.P.C., as
referred in the order impugned, has not been supplied/given to
the present applicant (accused), therefore, he was not in a
position to go through the aforesaid statement. He has further
submitted that it appears that alleged statement under Section
161 Cr.P.C. dated 05.02.2020, as referred by the respondents in
his impleadment application has been planted subsequently for
the purpose of framing additional charge u/s 376 I.P.C. It is
further submitted that for the purposes of investigation under
the Immoral Traffic Act a Special Police Officer not below the
rank of Inspector of Police is authorised to investigate or record
the statement of the victim, therefore, in the instant matter
statement recorded by the concerned lady constable vitiates the
process of the entire statement under Section 161 Cr.P.C.
8. Having considered the rival submissions advanced by
learned counsel for parties and perusal of record, it manifested
that the name of the present applicant was emerged during reinvestigation under Section 173(8) Cr.P.C. and he has been
arraigned in the supplementary charge sheet dated 17.07.2020.
During re-investigation victim has made her statement under
Section 161 Cr.P.C. which is evident from the copy of the
supplementary charge sheet (Annexure No.5) wherein name of
victim has find placed at serial No.2. Having considered the
material on record filed along with the subsequent charge sheet
dated 17.07.2020, learned trial court has framed as many as
seven charges, vide order dated 20.10.2020, against the present
applicant. At later stage, prosecution has moved a miscellaneous
application to frame additional charge under Section 376 I.P.C.
inasmuch as same has been left to be considered whereas
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specific allegations has been made by the victim in her
statement under Section 161 Cr.P.C. in this regard.
9. Learned counsel for the applicant in his first submission
has raised question qua maintainability of the application (Paper
No.10 Kha) moved on behalf of the prosecution with a
submission that there is no provision under the law to move
such application before the trial court who himself competent to
subtract or addition of charges in exercise of power under
Section 216 Cr.P.C. On the contrary learned counsel for
opposite party No.2 has contended that application (Paper No.
10 Kha) under Section 216 Cr.P.C. moved by the prosecution
was nothing but a piece of information to bring the relevant fact
in the notice of learned trial court, which has been over cited by
the concerned court, to eliminate defect in framing of the
charge.
10. For analyzing the divergent submissions made by the
counsel for the rival parties it would be befitting to consider the
scope of Section 216 Cr.P.C., which is quoted herein below :-
"(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.
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(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 had been already obtained for a
prosecution on the same facts as those on which the altered or
added charge is founded."
11. Bare perusal of Section 216 Cr.P.C. clearly denotes that
the court is empowered to alter charges at any stage of trial
before the delivery of judgment. Question with respect to the
maintainability of miscellaneous application (Paper No. Kha)
moved by prosecution or any other party for framing of
additional charges under Section 216 Cr.P.C. is relevant for the
purposes of deciding the instant matter. In the case of P.
Kartikalakshmi (Supra) Hon'ble Supreme Court has
expounded that there is no right to any party to seek for a
subtraction or addition of charges by filing any miscellaneous
application as a matter of right. The relevant paragraph Nos. 6
and 7 of the judgment is quoted herein below :-
"6. Having heard the learned counsel for the respective
parties, we find force in the submission of the learned Senior
Counsel for Respondent No.1. 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 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 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.
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7. We were taken through Sections 221 and 222 Cr.P.C. in this
context. In the light of the facts involved in this case, we are
only concerned with Section 216 Cr.P.C. 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 Cr.P.C.
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 Cr.P.C. 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 jeopardised."
12. Hon'ble Supreme Court has further clarified in the case of
Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana
and Another (2016) 6 SCC 105 that it is obligatory at the part
of the court to see that no prejudiced cause to the accused and
he is allowed to have a fair trial and court can change or alter
the charges if there is no defect or something is left out.
Relevant paragraph No.18 of the aforesaid judgment is quoted
herein below :-
"8. The controversy as raised rests on two aspects. The first
aspect that has emanated for consideration is whether without
evidence being adduced another charge could be added. In
this context, we may usefully refer to Section 216 CrPC which
reads as follows:-
"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.
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(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."
13. In the aforesaid judgment Hon'ble Supreme Court has
also examined the maintainability of the application moved by
the private party for alteration of charge. Parting with the matter
Hon'ble Supreme Court has expounded that by way of
application relevant fact has brought to the knowledge of
learned Magistrate about the defect in framing the charges,
therefore, Magistrate has not committed any error in
entertaining the said application. Relevant paragraph Nos. 21
and 22 of the aforesaid judgment is quoted herein below :-
"21. Presently to the second aspect. Submission of Mr. Sharan
is that the learned Magistrate could not have entertained the
application preferred by the informant, for such an application
is incompetent because it has to be filed by the public
prosecutor. In this regard, he has laid stress on the decision in
Shiv Kumar v. Jukam Chand and another23. In the said case,
the grievance of the appellant was that counsel engaged by
him was not allowed by the High Court to conduct the
prosecution in spite of obtaining a consent from the concerned
Public Prosecutor. The trial court had passed an order to the
extent that the advocate engaged by the informant shall
conduct the case under the supervision, guidance and control
of the Public Prosecutor. He had further directed that the
Public Prosecutor shall retain with himself the control over the
proceedings. The said order was challenged before the High
Court and the learned single Judge allowing the revision had
directed that the lawyer appointed by the complainant or
private person shall act under the directions from the Public
Prosecutor and may with the permission of the court submit
written arguments after evidence is closed and the Public
Prosecutor in-charge of the case shall conduct the
prosecution. This Court referred to Sections 301, 302(2), 225
CrPC and various other provisions and came to hold as
follows:- "
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"13. From the scheme of the Code the legislative
intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by anyone
other than the Public Prosecutor. The legislature
reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not
expected to show a thirst to reach the case in the
conviction of the accused somehow or the other
irrespective of the true facts involved in the case.
The expected attitude of the Public Prosecutor
while conducting prosecution must be couched in
fairness not only to the court and to the
investigating agencies but to the accused as well.
If an accused is entitled to any legitimate benefit
during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty of
the Public Prosecutor to winch it to the fore and
make it available to the accused. Even if the
defence counsel overlooked it, the Public
Prosecutor has the added responsibility to bring it
to the notice of the court if it comes to his
knowledge. A private counsel, if allowed a free
hand to conduct prosecution would focus on
bringing the case to conviction even if it is not a fit
case to be so convicted. That is the reason why
Parliament applied a bridle on him and subjected
his role strictly to the instructions given by the
Public Prosecutor.
14. It is not merely an overall supervision which
the Public Prosecutor is expected to perform in
such cases when a privately engaged counsel is
permitted to act on his behalf. The role which a
private counsel in such a situation can play is,
perhaps, comparable with that of a junior
advocate conducting the case of his senior in a
court. The private counsel is to act on behalf of the
Public Prosecutor albeit the fact that he is
engaged in the case by a private party. If the role
of the Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would become a
combat between the private party and the accused
which would render the legislative mandate in
Section 225 of the Code a dead letter."
22. Being of this view, this Court upheld the order passed by
the High Court. The said decision in Shiv Kumar v. Jukam
Chand and another23 is, in our opinion, is distinguishable on
facts. The instant case does not pertain to trial or any area by
which a private lawyer takes control of the proceedings. As is
evident, an application was filed by the informant to add a
charge under Section 406 IPC as there were allegations
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against the husband about the criminal breach of trust as far
as her stridhan is concerned. It was, in a way, bringing to the
notice of the learned Magistrate about the defect in framing of
the charge. The court could have done it suo motu. In such a
situation, we do not find any fault on the part of learned
Magistrate in entertaining the said application. It may be
stated that the learned Magistrate has referred to the materials
and recorded his prima facie satisfaction. There is no error in
the said prima facie view. We also do not perceive any error in
the revisional order by which it has set aside the charge
framed against the mother-in-law. Accordingly, we affirm the
order of the High Court in expressing its disinclination to
interfere with the order passed in revision. We may clarify that
the entire scrutiny is only for the purpose of framing of charge
and nothing else. The learned Magistrate will proceed with the
trial and decide the matter as per the evidence brought on
record and shall not be influenced by any observations made
as the same have to be restricted for the purpose of testing the
legal defensibility of the impugned order."
14. Discussing the wide power of the trial court under
Section 216 Cr.P.C. Hon'ble Supreme Court has held in the
matter of Dr. Nallapareddy Sridhar Reddy Vs. State of
Andhra Pradesh and Others (2020) 12 SCC 467, that the
court has immense power to change or altering the charges at
any stage. The relevant paragraph No.21 of the aforesaid
judgment is quoted herein below :-
"21. From the above line of precedents, it is clear that Section
216 provides the court an exclusive and wide-ranging power
to change or alter any charge. The use of the words "at any
time before judgment is pronounced" in Sub-Section (1)
empowers the court to exercise its powers of altering or
adding charges even after the completion of evidence,
arguments and reserving of the judgment. The alteration or
addition of a charge may be done if in the opinion of the court
there was an omission in the framing of charge or if upon
prima facie examination of the material brought on record, it
leads the court to form a presumptive opinion as to the
existence of the factual ingredients constituting the alleged
offence. The test to be adopted by the court while deciding
upon an addition or alteration of a charge is that the material
brought on record needs to have a direct link or nexus with the
ingredients of the alleged offence. Addition of a charge merely
commences the trial for the additional charges, whereupon,
based on the evidence, it is to be determined whether the
accused may be convicted for the additional charges. The
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court must exercise its powers under Section 216 judiciously
and ensure that no prejudice is caused to the accused and that
he is allowed to have a fair trial. The only constraint on the
court's power is the prejudice likely to be caused to the
accused by the addition or alteration of charges. Sub-Section
(4) accordingly prescribes the approach to be adopted by the
courts where prejudice may be caused."
15. Learned counsel for the applicant has emphasized the
judgment passed by coordinate Bench of this Court in the
matter of Sushil Dhameja and Another (Supra) wherein this
Court has quashed order passed by the trial court by which
miscellaneous application u/s 216 Cr.P.C. moved on behalf of
the prosecution has been entertained and allowed. While
passing the order, coordinate Bench of this Court has referred
the dictum of Hon'ble Supreme Court in the matter of P.
Kartikalakshmi (Supra) and in the light of the said judgment
quashed the order passed by the court below and granted liberty
to the trial court to pass fresh order in the light of the provisions
as enunciated under Section 216 Cr.P.C. Learned counsel for
applicant has also placed reliance upon the case of Kuldeep
(Supra) decided by coordinate Bench of this Court. The facts of
the cited case are distinguishable in the given circumstances of
the present case. In the cited case application to alter the
charges was moved on 30.01.2018 under Section 216 Cr.P.C.
and the same was kept pending which lead to file an application
under Section 482 Cr.P.C. for a direction to expeditious disposal
of the said application. Hon'ble Judge has dismissed the
application with an observation that separate application under
Section 216 Cr.P.C. for substraction or addition of charges is not
maintainable in the eye of law, accordingly, refused to issue
direction for expeditious disposal of said application. In the
recent judgment of Soundarajan Vs. State Rep. by Inspector
of Vigilance Anti Corruption Dindigul, 2023 SCC Online SC
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242. Hon'ble Supreme Court has expounded that even a public
prosecutor has a duty to be vigilant and if a proper charge is not
framed it is his duty to apply to the court to frame an
appropriate charge. Relevant paragraph No.16 of the said
judgment is quoted herein below :-
"We find that, in this case, the charge has been framed very
casually. The Trial Courts ought to be very meticulous
Criminal Appeal No.1592 of 2022 when it comes to the
framing of charges. In a given case, any such error or
omission may lead to acquittal and/or a long delay in trial
due to an order of remand which can be passed under subsection (2) of Section 464 of CrPC. Apart from the duty of the
Trial Court, even the public prosecutor has a duty to be
vigilant, and if a proper charge is not framed, it is his duty to
apply to the Court to frame an appropriate charge."
16. Having considered the matter in hand, in light of the
guidelines of Hon'ble Supreme Court as discussed above, I am
of the considered opinion that learned trial court has rightly
entertained the Misc. Application (Paper No.10Kha) as a piece
of information moved on behalf of prosecution. While deciding
the said application, learned trial court has specifically
considered the allegation of forceful sexual assault made by
victim which was left to be noticed at the time of framing
charges. In her statement u/s 161 Cr.P.C. she has made specific
allegation, as highlighted by learned trial court, of rape.
Statement of victim under Section 161 Cr.P.C. was recorded by
the Investigating Officer during re-investigation under Section
173(8) Cr.P.C. The right of accused to have a fair trial and no
prejudiced beget to him while conducting the trial is an
obligatory at the part of the court, however, said right of the
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accused cannot be seen in isolation and same would be
considered in conjunction with the provisions as enunciated
under Section 216 Cr.P.C., Therefore, any defect in framing
charges which begot due to lack of proper consideration of the
material on record can be rectified at any stage of trial even
before the delivery of judgment in exercise of power under
Section 216 Cr.P.C. It might possible that court misled in
framing of charges, the Public Prosecutor has a duty to be
vigilant and apprise the court qua correct facts of the case in the
light of the material on record and, accordingly, take an
appropriate steps for substraction or addition of charges under
the provisions of law as enunciated under Section 216 Cr.P.C. In
this respect Hon'ble Supreme Court has clearly held in the
matter Soundarajan (Supra) that the Public Prosecutor is
entrusted with duty to apprise the court qua defect, if any, in
framing charges. In the matter in hand, ADGC (Public
Prosecutor) has moved application dated 15.03.2021 (Paper
No.10Kha) to frame additional charge under Section 376 I.P.C.
against the present applicant. Learned trial court, vide order
impugned dated 10.11.2022, has entertained the said application
as a piece of information and acknowledg the defect in framing
of charges, wherein allegation of rape made by the victim under
Section 161 Cr.P.C. has been left to be considered. Learned trial
court by order impugned has simply allowed the application and
deferred the hearing of the case for the next date to frame
additional charge and, accordingly, accused has been directed to
be present on the next date. It is admitted position to both the
parties that till date additional charge under Section 376 I.P.C.
has not been framed by the trial court in pursuance of the order
impugned dated 23.11.2022.
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17. As discussed above, there is no iota of doubt qua wide
power of the courts for substraction or addition of charges under
Section 216 Cr.P.C. Miscellaneous application dated 12.3.2021
(Paper no.10Kha) moved on behalf of the prosecution cannot be
treated to be an independent initiation rather than a piece of
information which is pious duty of the prosecution (Public
Prosecutor) to bring the correct fact to the notice of the court
concerned so that correct charges could be framed for the
purposes of fair trial sans begetting prejudiced to any party.
Even assuming for the sake of argument, as raised by learned
counsel for the applicant, that no party has vested right to seek
any addition or alteration of charge by moving an application,
the power vested in the court would not be affected owing to
entertaining such application as a piece of information to alter
the charges, in case, there is any omission or defect in framing
of charges due to ignorance of the relevant event which is
already on the record. Once the defect has been brought to the
knowledge of the court it would not be befitting for him
oblivious to the allegation as levelled by the victim against the
present applicant. Even otherwise, having considered the
material on record learned court is competent enough to pass an
order suo moto to substract or addition of the charges.
Therefore, in my considered opinion learned trial court has not
committed any error in entertaining the application (Paper
No.10Kha) and fixed dated for framing of charge in the light of
the fact which has been brought to his knowledge in the said
application.
18. Second submission raised by learned counsel for the
applicant questioning the availability of inadequate material for
framing of additional charge u/s 376 I.P.C. is unfounded at this
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stage. Statement of victim u/s 161 Cr.P.C., priam facie, is
suficient to alter the charges in exercise of jurisdiction u/s 216
Cr.P.C. Trial court by order impugned has simply allowed the
application acknowledging the relevant fact for the purposes of
framing of charge, however, he has deferred the matter for
framing of charge on the next date fixed. Therefore, in may
opinion opportunity is still open for the applicant to raise
question qua adequate material on record with respect to the
framing of additional charge, if any.
19. Third submission raised by learned counsel for the
applicant questioning the genuineness and sanctity of the
statement dated 05.02.2020 made by victim under Section 161
Cr.P.C. is unfounded as well. At this juncture, wherein trial
commenced after framing of charges vide order dated
20.10.2020 and, at later stage, next date fixed for addition of
charge under Section 376 I.P.C. it would not be befitting for this
Court to examine the sanctity, genuineness and correctness of
the statement made by the victim under Section 161 Cr.P.C.
during reinvestigation, whereas same can be examined by the
trial court at the appropriate stage of trial. So far as the
allegation made by the applicant in his rejoinder affidavit that
the statement made by victim under Section 161 Cr.P.C. during
reinvestigation has not been supplied to him, same can be raised
before the trial court as well at the relevant stage. At this stage
of trial, for the procedural glitch, if any, this Court cannot
assume inherent jurisdiction to quash the proceedings.
Genuineness and sanctity of the statement made by victim
under Section 161 Cr.P.C. in the light of the provision as
enunciated under Section 13(2) Immoral Traffic (Prevention)
Act, 1956 and not recording her statement by the authority
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competent, as pointed out by learned counsel for the applicant,
is a matter of scrutiny which can more appropriately be
adjudicated upon by the trial court while examining the
relevance and admissibility of the evidence during trial. At this
juncture, this Court, in exercise of it’s inherent jurisdiction,
cannot assume the power to examine the correctness and
validity of the statement of witness under Section 161 Cr.P.C. in
the light of procedural glitch, if any, more particularly for want
of recording the statement by authority competent as allegedly
required under the Immoral Traffic (Prevention) Act, 1956.
20. In this conspectus, as above, I do not find any justifiable
ground to entertain the instant application at this juncture. There
is no illegality, perversity, ambiguity or infirmity in the order
under challenge. I found neither any abuse of process of court in
the order impugned dated 23.11.2022 nor is there any valid
ground to interfere in said order to secure the ends of justice.
There is nothing on record to demonstrate as to how present
applicant is prejudiced, or if there is any likelihood of causing
miscarriage of justice to him, owing to the order under
challenge by which application u/s 216 Cr.P.C. for framing
additional charge has simply been allowed acknowledging the
relevant fact which has been left to be considered at the time of
framing of charges.
21. Resultantly, instant application being, misconceived and
devoid of merits is dismissed with no order as to costs.
Order Date :- 22.12.2023
Md Faisal
