# Avdhesh @ Avdhesh Kumar v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 2 ILRA 1144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-09
- **Case number:** Application u/s 482 No. 1122 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avdhesh-avdhesh-kumar-v-state-of-u-p-ors-opp-parties-51304
- **Pages:** 4

## Headnote

(A) Criminal Law - Alteration of charge by
court - The Code of criminal procedure,
1973 - Sections 161, 164, 216, 221, 222,
397, 482 - Inherent power, Indian Penal
Code, 1860 -Sections 363, 366, 376 ,
Protection
of
Children
from
Sexual
Offences (POCSO) Act, Sections 3, 4, 16,
17 - Trial court has exclusive power to
alter or add charges under Section 216
CrPC at any time before the judgment is
pronounced - Court must apply judicious
mind
considering
evidence
and
circumstances - 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.(Para - 5)

Petitioner seeks to quash order adding charges
under Sections 376 IPC and 3/4 POCSO Act -
Prosecution filed application based on prosecutrix's
testimony - Petitioner granted bail in initial case
under Sections 363 & 366 IPC and Sections 16/17
POCSO Act. (Para - 4)

HELD: - Trial court has rightly considered the
testimony of the prosecutrix whereby she has
stated on oath before the court during trial that
the petitioner has committed offence of rape when
she was below eighteen years. Trial court's order
adding charges upheld. Petitioner can raise
defenses and seek leniency in bail. (Para - 7, 9)

Petition disposed of finally. (admission
stage)
(E-7)
2 All. Avdhesh @ Avdhesh Kumar Vs. State of U.P. & Ors.
1145
List of Cases cited:

## Text

1144 INDIAN LAW REPORTS ALLAHABAD SERIES
evaluate
such
evidence.
Further,
the
evidentiary value of the injured witness is
on the high pedestal and the present
petitioner being inured witness and he is
stating on oath in this petition that accused
persons against whom the charge sheet has
not been filed were the assailants. Besides,
Dharmendra Kumar Singh and Shivam,
who are injured witnesses, have stated in
chief examination that the persons against
whom the allegations have been levelled in
the application filed under Section 319
C.P.C. have assaulted the victim, therefore,
such
application
should
have
been
considered properly.

13. In view of the above, the
impugned order dated 04.09.2023 is hereby
set aside/ quashed. The matter is remanded
back to the learned trial court to decide the
application dated 17.10.2022 filed by
Dharmendra Kumar Singh afresh. Liberty
is also given to the petitioner, who is
injured witness, to file such application
under Section 319 Cr.P.C. by providing
certified copy of this order before the court
concerned and that application shall also be
decided by the learned trial court, strictly in
accordance with law, by speaking and
reasoned order, by affording an opportunity
of hearing to the parties concerned, with
expedition, preferably within a period of
six weeks from the date of production of
certified copy of this order.

14. Accordingly, the instant petition is
allowed.
----------
(2024) 2 ILRA 1144
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
Application u/s 482 No. 1122 of 2024

Avdhesh @ Avdhesh Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Bhup Chandra Singh

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - Alteration of charge by
court - The Code of criminal procedure,
1973 - Sections 161, 164, 216, 221, 222,
397, 482 - Inherent power, Indian Penal
Code, 1860 -Sections 363, 366, 376 ,
Protection
of
Children
from
Sexual
Offences (POCSO) Act, Sections 3, 4, 16,
17 - Trial court has exclusive power to
alter or add charges under Section 216
CrPC at any time before the judgment is
pronounced - Court must apply judicious
mind
considering
evidence
and
circumstances - 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.(Para - 5)

Petitioner seeks to quash order adding charges
under Sections 376 IPC and 3/4 POCSO Act -
Prosecution filed application based on prosecutrix's
testimony - Petitioner granted bail in initial case
under Sections 363 & 366 IPC and Sections 16/17
POCSO Act. (Para - 4)

HELD: - Trial court has rightly considered the
testimony of the prosecutrix whereby she has
stated on oath before the court during trial that
the petitioner has committed offence of rape when
she was below eighteen years. Trial court's order
adding charges upheld. Petitioner can raise
defenses and seek leniency in bail. (Para - 7, 9)

Petition disposed of finally. (admission
stage)
(E-7)
2 All. Avdhesh @ Avdhesh Kumar Vs. State of U.P. & Ors.
1145
List of Cases cited:

1. P. Kartikalakshmi Vs Sri Ganesh & anr.,
(2017) 3 SCC 347

2. Hasanbhai Valibhai Qureshi Vs St. of Guj. &
ors., (2004) 5 SCC 347

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Bhup Chandra Singh,
learned counsel for the petitioner and Sri
Aniruddha
Kumar
Singh,
learned
Additional Government Advocate-I for the
State.

2. In view of the order proposed to be
passed, the notices to opposite party Nos.3
and 4 are hereby dispensed with.

3. By means of this petition filed
under Section 482 Cr.P.C., the petitioner
has prayed for quashing/ setting aside the
order dated 11.01.2024 passed in S.T.
No.54 of 2021 (State vs. Avdhesh) by the
learned Special Judge, POCSO Act, /
Additional Sessions Judge, Room No.12,
Sultanpur relating to Case Crime No.136 of
2019, under Sections 363 & 366 I.P.C. and
Section 16/17 of POCSO Act, Police
Station-Kamrauli, District-Amethi, so far
as it relates to the present petitioner, as well
as the entire criminal proceedings pending
against the petitioner may kindly be
terminated.

4. Attention has been drawn towards
Annexure No.2 of the petition which is
F.I.R. registered against the petitioner
bearing Case Crime No.136 of 2019, under
Sections 363 & 366 I.P.C. and Section
16/17 of POCSO Act, Police StationKamrauli,
District-Amethi
and
the
petitioner has been granted bail in the
aforesaid case crime number. Thereafter,
the investigation was completed and the
charge-sheet was filed under those sections
but during the course of trial, the
prosecution has filed an application before
the court after examination of the testimony
of the prosecutrix to the effect that on the
basis of such testimony section 3/4 of
Protection
of
Children
from
Sexual
Offences Act (POCSO) and Section 376
I.P.C. should be added. However, objection
has been filed on behalf of the petitioner to
the effect that earlier the prosecutrix has
not supported the prosecution version while
recording her statement under Sections 161
Cr.P.C. & 164 Cr.P.C. and authenticity of
those statements may not be ignored.

5. Learned counsel for the petitioner
has drawn attention of this court towards
the dictum of Apex Court rendered in the
case in re: P. Kartikalakshmi vs. Sri
Ganesh and another reported in (2017) 3
SCC 347 wherein the Apex Court has
observed that the powers of Section 216
Cr.P.C. may not be invoked on the
application of the prosecution or the
defence but the court while invoking
powers under Section 216 Cr.P.C. should
apply its judicious mind and must consider
the relevant facts, circumstances and
evidences available on record. Therefore,
the impugned order dated 11.01.2024
whereby the court added Sections 376
I.P.C. and 3/4 of POCSO Act on the
application of the prosecution filed under
Section 216 Cr.P.C. The Apex Court in the
case in re: P. Kartikalakshmi (supra) in
paras-6, 7 & 8 held as under:-

"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 charge at any time before the
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 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 jeopardised.
8. In such circumstances, when the
application preferred by the appellant itself
before the trial court was not maintainable,
it was not incumbent upon the trial court to
pass an order under Section 216 CrPC.
Therefore, there was no question of the said
order being revisable under Section 397
CrPC. The whole proceeding, initiated at
the instance of the appellant, was not
maintainable. Inasmuch as the legal issue
had to be necessarily set right, we are
obliged to clarify the law as is available
under Section 216 CrPC. To that extent,
having clarified the legal position, we make
it clear that the whole proceedings initiated
at the instance of the appellant was
thoroughly misconceived and vitiated in
law and ought not to have been entertained
by the trial court. As rightly pointed out by
the learned Senior Counsel for Respondent
1, such a course adopted by the appellant
and entertained by the court below has
unnecessarily
provided
scope
for
protraction of the proceedings which ought
not to have been allowed by the court
below."

(emphasis supplied)

6. Per contra, Sri Aniruddha Kumar
Singh, learned Additional Government
Advocate-I has submitted that learned
counsel for the petitioner has placed
appropriate judgment before this Court but
the facts and circumstances of the present
case are different from the case which was
considered by the Apex Court. In the
present case, the learned trial court has
neither considered an application of the
2 All. Pradeep Yadav Vs. State of U.P. & Ors.
1147
prosecution nor objection of the defence
but
has
applied
its
judicious
mind
considering
the
testimony
of
the
prosecutrix indicating her statement in the
impugned
order
dated
11.01.2024,
therefore, the benefit of the judgment of
Apex Court rendered in the case in re: P.
Kartikalakshmi
(supra)
may
not
be
provided to the petitioner in the present
case.

7. Having heard learned counsel for
the parties and having perused the material
available on record and having regard to
the judgment of Apex Court rendered in the
case in re: P. Kartikalakshmi (supra), I find
that while passing the impugned order
dated 11.01.2024, the learned trial court has
rightly considered the testimony of the
prosecutrix whereby she has stated on oath
before the court during the course of trial
that the petitioner has committed offence of
rape when she was below eighteen years.

8. In Hasanbhai Valibhai Qureshi vs.
State of Gujarat and others reported in
(2004) 5 SCC 347, the Apex Court while
dealing with scope of Section 216 Cr.P.C,
in para-10 has held as under:-

"10. Therefore, if during trial the
trial court on a consideration of broad
probabilities of the case based upon total
effect of the evidence and documents
produced is satisfied that any addition or
alteration of the charge is necessary, it is
free to do so, and there can be no legal bar
to appropriately act as the exigencies of the
case warrant or necessitate."

9. Therefore, in view of what has
been considered above, I am not inclined to
interfere with the impugned order dated
11.01.2024 passed by the learned trial court
but it is needless to say that the petitioner
after surrendering/ appearing before the
court concerned may take all pleas and
grounds which are available to him to
establish himself as innocent in those
sections. He may also apprise the court
concerned that in the F.I.R. and the chargesheet, which has been filed by the
Investigating Officer, the petitioner has
already been granted bail, therefore, in
added sections his bail application may be
considered leniently.

10. In view of the above, the instant
petition is disposed of finally at the
admission stage.

Before parting with, I appreciate the
efforts and research work done by Mr.
Piyush
Tripathi,
Research
Associate,
attached with me and Mr. Vaibhav Tyagi,
Law Intern in finding out the relevant case
laws applicable in the present case.
----------
(2024) 2 ILRA 1147
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.02.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application u/s 482 No. 1327 of 2022
AND
Application u/s 482 No. 1677 OF 2015
connected with
Application u/s 482 No. 3413 of 2014
and
Application u/s 482 No. 6425 of 2023

Pradeep Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Ashok Kumar Yadav, Aditya Singh

Counsel for the Opp. Parties: