# Dev Narain Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 692
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-20
- **Case number:** Criminal Revision No. 1026 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-narain-revisionist-v-state-of-u-p-anr-50733
- **Pages:** 6

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 498-A, 304-B &
323- Dowry prohibition Act, 1961
-
Section3/4
,
The
Code
of
Criminal
Procedure, 1973 - Section 216 - Court
may alter charge - Court may alter or add
to
any
charge
at
any
time
before
judgment is pronounced but alteration of
charge and deletion of charge hold
different field and these two cannot be
intermingled, otherwise it will cause
miscarriage of justice - trial court in
exercise of its powers under Section 216
Cr.P.C. cannot delete the charges framed
by it. (Para - 9,11)

Petitioner seeks deletion of a charge of
conspiracy - application moved under Section
216 Cr.P.C. by revisionist - for alteration of
charges framed against him - rejected by court
below - hence revision. (Para - 4)

HELD:-Deletion of a charge not permissible
under Section 216 of the Code. Charge once
framed must lead to either acquittal or
conviction at the conclusion of trial. No illegality,
irregularity or impropriety in the impugned order
passed by trial court.(Para - 14,16)

Revision dismissed. (E-7)

List of Cases cited:

## Text

692 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionists were enlarged on anticipatory
bail by orders of Additional Session Court
and same order has not been set aside by
any competent court.

6. Correction application is hereby
allowed.

7. Aforesaid cited observations of this
Court stand expunged in final order dated
20.7.2023.

8. This order shall be treated as part
of the order dated 20.7.2023.
----------
(2023) 9 ILRA 692
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1026 of 2023

Dev Narain ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Abhay Raj Yadav, Sri V.K. Ojha

Counsel for the Respondents:
G.A.

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 498-A, 304-B &
323- Dowry prohibition Act, 1961
-
Section3/4
,
The
Code
of
Criminal
Procedure, 1973 - Section 216 - Court
may alter charge - Court may alter or add
to
any
charge
at
any
time
before
judgment is pronounced but alteration of
charge and deletion of charge hold
different field and these two cannot be
intermingled, otherwise it will cause
miscarriage of justice - trial court in
exercise of its powers under Section 216
Cr.P.C. cannot delete the charges framed
by it. (Para - 9,11)

Petitioner seeks deletion of a charge of
conspiracy - application moved under Section
216 Cr.P.C. by revisionist - for alteration of
charges framed against him - rejected by court
below - hence revision. (Para - 4)

HELD:-Deletion of a charge not permissible
under Section 216 of the Code. Charge once
framed must lead to either acquittal or
conviction at the conclusion of trial. No illegality,
irregularity or impropriety in the impugned order
passed by trial court.(Para - 14,16)

Revision dismissed. (E-7)

List of Cases cited:

1. Nanhey Bhaiya @ Nanhan Singh & ors. Vs
St. Of U.P. Thru. Prin. Secy. , U/S 482 No.2556
of 2023

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

3. Vibhuti Narayan Chaubey @. Vs St. Of U.P,
2003 CrLJ 196

4. Verghese Stephen Vs C.B.I. , 2007 Cr.L.J.
4080

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri V.K. Ojha, Advocate,
holding brief of Sri Abhay Raj Yadav,
learned counsel for the revisionist, Sri
Deepak Kapoor, learend AGA for the State
and perused the material placed on record.

2. As per the office report, service
report is still awaited.

3. Keeping in view the fact that the
present revision is pending since 2.2.2023
and service of notice could not be affected
by learned CJM on opposite party No.2.
9 All. Dev Narain Vs. State of U.P. & Anr.
693
With a view to avoid further delay in trial
of the case, which is progressing before the
court below, this Court is of the opinion
that there is no need to wait for service of
notice on opposite party No.2 and the
matter may be decided on merits after
hearing learned counsel for the revisionist
as well as learned AGA for the State, as
this is a case based on police report.

4. Instant criminal revision has been
preferred against the impugned judgement
and order dated 30.1.2023, passed by
learned Additinal District and Sessions
Judge (FTC), Chitrakoot in Sessions trial
No.117 of 2016, "State vs. Dev Narain",
arising out of Case Crime No.479 of 2016,
under Sections 498-A, 304-B, 323 IPC &
3/4 of D.P. Act, 1961, Police Station Karwi
Kotwali
Nagar,
District
Chitrakoot,
whereby the court below rejected the
application 29-Kha moved under Section
216 Cr.P.C. by the revisionist for alteration
of charges framed against him.

5. The brief facts of the care are that
in present case FIR was lodged at the
instance of opposite party No.2 Vibhuti
Bhushan Garg with averment that his sister
Rashmi was married to Kamal Kishore @
Satyanarayan on 22.2.2016, in which they
have given sufficient cash and gifts to
accused side but nonetheless the husband
of his sister and his family members kept
on demanding a four wheeler and washing
machine and due to non-fulfilment of
demand of dowry, they were subjecting her
to cruelty and also would threaten her.
Prior to four days of lodging of FIR, he
visited the place of in-laws of his sister and
her husband and her in-laws again made
demand of dowry and refused to sent her
with him without fulfilment of demand of
dowry. He went back to home and apprised
his father by telephone about the act of
accused
persons.
On
25.5.2016,
Sri
Narayan, who is elder brother of the
husband of his sister, informed him that the
house of his sister was locked from the
outside. He rushed to the place and got the
lock broken in presence of police and found
the dead body of his sister and there were
injuries on her person. In the FIR, the
husband, Sri Narain (jeth), Dev Narain
(dewar) and three relatives of her husband
were named. The post mortem examination
of
the
deceased
was
conducted
on
26.5.2016,
in which
six
antemortem
injuries were found on her person and
cause of death was found by the Doctor as
coma and shock due to antemortem
injuries. The death was instantaneous.
Satya Narain, the husband of the deceased
was found missing from the date of
incident and subsequently, it was known
that his dead body was found between
railway track. A Nokia mobile phone (twin
SIM) was also recovered near the dead
body and when Sub-Inspector inserted SIM
in his own mobile phone and dialled a
number, one Ashok Kumar Dwivedi
replied the call and stated that the said
number belongs to his brother-in-law
(wife's brother) Satya Narain, who came
and identified the body of Satya Narain. In
his postmortem report also, injuries were
found on his person and cause of death was
recorded as antemortem injuries leading to
asphyxia, which led to cardio respiratory
failure and immediate cause was found
strangulation. The police investigated the
case and filed charge-sheet against present
revisionist and name of other accused
persons barring deceased Satya Narain was
dropped during investigation, as their
complicity was not found in the offence of
dowry death of deceased Rashmi. Accused
Dev Narain, who is brother-in-law of the
deceased
moved
an
application
for
discharge before trial court, which was
694 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected by order dated 28.7.2017 and case
was fixed for prosecution evidence. The
accused Dev Narain, who filed a petition
under Section 482 Cr.P.C. against rejection
of his discharge application before this
Court, which was dismissed by this Court
with observation that "it is open to the
applicant to move an application for
alteration of charge under Section 216
Cr.P.C. before trial court". Pursuant to the
observation of this Court, the sole accused
Dev Narain, who is dewar of deceased has
filed an application under Section 216
Cr.P.C., wherein he has stated that he has
moved this application pursuant to the
observation of Hon'ble High Court vide
order dated 9.6.2017. The factum of death
of husband of deceased Kamal Kishor @
Satyanarain and recovery of his dead body
from railway track was entered in GD
Entry
No.21,
time
15:10
hours
on
26.5.2016, police station Manikpur. There
is no specific allegation of demand of
dowry or subjecting the deceased to
matrimonial cruelty is made by any witness
examined by the Investigating Officer
against the applicant. On the basis evidence
collected during investigation. This appears
that deceased Rashmi and her husband
were residing in separate house and he was
working in railway and they used to pickup
quarrel on some issue. The key of house
where dead body of deceased was lying
was recovered from the pocket of cloths
worn by the Kamal Kishore on recovery of
his dead body. The deceased and her
husband were residing separately from the
revisionist and other family members and
they were not concerned with daily affairs
of each other. The revisionist could not be
beneficiary of any demand of dowry
allegedly made by husband of the deceased
from deceased and her family members.
There is no evidence that she was subjected
to matrimonial cruelty soon or before her
death. The ingredients of charges under
Sections 498-A. 304-B and 323 IPC and
Section 3/4 DP Act are not made out
against the applicant. Therefore, the said
charges are liable to be quashed and the
applicant may be discharged from the
charges.
This
application
has
been
dismissed by the court below. Learned
court below while rejecting the application
has observed that on the basis of evidence
on record, no error is found in charges
made against the applicant on 6.9.2016,
therefore, there is no question of alteration
of charge. The evidence of PW-1- the
informant has been recorded during trial in
which he has supported his FIR version and
he has stated in cross-examination also that
in matter of killing of his sister, the
complicity of her husband (late) and
brothers-in-law Sri Narain, Dev Narain and
other relatives is involved and these
persons killed her.

6. Learned counsel for the revisionist
while placing reliance on grounds taken in
application under Section 216 Cr.P.C.
moved before the court below submitted
that there is no evidence or material against
the revisionist which can suggest that he as
in any manner involved in unfortunate
death of deceased Rashmi, who was sisterin-law and married to his late brother Satya
Narain. The circumstances suggests that
some altercation might have taken place
between the husband and wife on fateful
day and they would have been involved in
some altercation and she might have
received fatal injuries in the altercation and
thereafter in disgust and guilt, her husband
would have locked the door of the house
from outside and committed suicide by
being run over by a train. Therefore, the
revisionist is not involved in death of the
deceased in any manner. No specific
averment has been made against the
9 All. Dev Narain Vs. State of U.P. & Anr.
695
revisionist in FIR as well as in statement of
witnesses examined under Section 161
Cr.P.C. Even PW-1 in his testimony before
Court has not assigned any specific role to
the revisionist in his evidence. There is
nothing to connect the revisionist with
alleged offence. All the accused persons
were exonerated in chargesheet by the
Investigating Officer and the revisionist has
been chargesheeted without any sufficient
reason. The charges framed against the
revisionist are frivolous in nature and
should have been dropped by the court
below but the court below has dismissed
the application moved by the revisionist
under
Section
216
Cr.P.C.
without
assigning any good reason. Therefore, the
impugned order is not sustainable under
law and this is liable to be set aside and this
Court may be pleased to alter the charges
framed against him or to pass such other
order as this Court deem fit in the facts and
circumstances of the case.

7. Per contra, learned AGA submitted
that there is no illegality or infirmity in the
impugned order passed by the court below
whereby the application 29-Kha moved by
the revisionist for alteration of charge
under Section 216 Cr.P.C. has been
dismissed and the case is being fixed for
prosecution evidence. The trial is in
progress and there is no good ground to
quash the charges framed against the
revisionist as the same will be amount to
discharge and this is settled law that no
order for discharge can be passed by the
trial court after framing of charge and case
will have to lead its logical conclusion after
receiving evidence of the parties.

8. Section 216 Cr.P.C. 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 perusal of above, is is
apparent that the Court may alter or add to
any charge at any time before judgment is
pronounced but alteration of charge and
deletion of charge hold different field and
these
two
cannot
be
intermingled,
otherwise it will cause miscarriage of
justice. This is admitted fact that the
696 INDIAN LAW REPORTS ALLAHABAD SERIES
discharge
application
moved
by
the
revisionist was dismissed by the trial court
and the criminal revision moved by the
revisionist against rejection of discharge
application has been dismissed by this
Court vide order dated 9.8.2017 in
Criminal Revision No. 2500 of 2017,
wherein this Court observed that the instant
criminal revision is finally disposed of with
a direction that in case, the revisionist is
aggrieved with regard to the framing of the
charge as on date, he may file an
appropriate application at the appropriate
stage when the evidence is to be produced
with regard to the alteration of charge and
in case, such an application is filed, the
same shall be heard and decided in
accordance with law after hearing all
parties concerned.

10. The charge has been framed
against the accused by the court below
under Sections 498-A, 304-B, 323 IPC and
3/4 of D.P. Act. The evidence of PW-1
Vibhuti Bhushan Garg was recorded on
1.9.2017 to 29.5.2018 and thereafter the
present application under Section 216
Cr.P.C. has been filed for alteration of
charge. The case against the revisionist is
that he is brother-in-law of the deceased
who died inside her home on fateful day
and on the same day, dead body of her
husband was found near railway track and
even the keys of the house in which dead
body of the deceased was found was
recovered from the dead body of deceased's
husband in same sequence of the evidence.
Post
mortem
examination
report
of
deceased Satya Narayan also suggests his
homicidal death.

11. From perusal of prayer made in
application under Section 216 Cr.P.C., it
appears in essence that this is a prayer for
discharge as the revisionist has stated that
he may be discharged from charged penal
sections and the charges levelled against
him be quashed. The trial court in exercise
of its powers under Section 216 Cr.P.C.
cannot delete the charges framed by it for
the said offences as the criminal procedure
code does not confers such powers on the
court. The trial court can only alter to a
charge or to add to a charge, which has
already framed. The discharge application
moved by the revisionist has already been
dismissed and said order has attained
finality.

12. This Court in Application U/S
482 No.2556 of 2023 (Nanhey Bhaiya @
Nanhan Singh And 2 others vs State Of
U.P. Thru. Prin. Secy.) on 31.3.2023 held
that the power of the Court under Section
216 Cr.P.C. to alter or add any charge at
any
time
before
the
judgment
is
pronounced is exclusively confined to
Court and no party has any vested right to
seek any addition or alteration of charge.

13. Recently, the Hon'ble Supreme
Court in P. Kartikalakshmi Versus Sri
Ganesh and another reported in (2017) 3
SCC 347, in paragraphs No.6, 7 and 8 has
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
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
9 All. Jamshed & Ors. Vs. State of U.P. & Anr.
697
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.

14. This Court in the case of Vibhuti
Narayan Chaubey Alias .. vs State Of U.P,
2003 CrLJ 196 held that Section 216 of the
code did not provide for deletion of a charge
and that the word "delete" had intentionally
not being used by the legislature. I am in
agreement
with
this
conclusion.
The
petitioner is seeking the deletion of a charge
of
conspiracy
altogether
that
is
not
permissible under Section 216 of the Code.
The charge once framed must lead to either
acquittal or conviction at the conclusion of
trial. Section 216 of the Code does not
permit
the
deletion
of
the
same.
Subsequently, Delhi High Court in the case
of Verghese Stephen vs Central Bureau
Of Investigation, 2007 Cr.L.J. 4080,
placed reliance on aforesaid judgement of
this Court in the case of Vibhuti Narayan
Chaubey (supra).

15. Section 222 (2) of the Cr.P.C.
provides that when a person is charged with
an offence and facts are proved which
reduce it to a minor offence, he may be
convicted of the minor offence, although he
is not charged with it.

16. On the basis of foregoing
discussions based on facts of this case
coupled with judicial authorities cited as
above, I find that the revision is devoid of
force. There is no illegality, irregularity or
impropriety in the impugned order passed
by the learned trial court and the revision is
liable to be dismissed.

17. Accordingly, present revision is
dismissed.
----------
(2023) 9 ILRA 697
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1526 of 2023

Jamshed & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Harish Kumar Tripathi

Counsel for the Respondents:
G.A., Sri Ajay Kumar Srivastava, Sri Ram
Raj Pandey

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 147, 148, 149, 452,
323, 506, 354, 354B, 324, 325 & 308 - The
Code of Criminal Procedure, 1973
-
Section 227- Discharge, Section 228 -
Framing
of
Charge
-
truthfulness,
sufficiency and acceptability of material
produced, can be examined only at the
stage of trial - at the stage of Section 227,
the Judge has merely to sift the evidence
in order to find out whether or not there is
sufficient ground for proceeding against
the accused - a charge can be made
against the accused on grave suspicion of