# Nanhey Bhaiya @ Nanhan Singh & Ors v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-31
- **Case number:** Application U/S 482. No. 2556 of 2023
- **Bench:** Ajai Kumar Srivastava- I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhey-bhaiya-nanhan-singh-ors-v-state-of-u-p-anr-50006
- **Pages:** 4

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-Section
216-Addition
of
Section
304B I.P.C. against the applicant on the
basis of an application moved by the first
informant -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-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- Result-Impugned
orders unsustainable and deserve to be
quashed .
Application U/s 482 CrPC disposed off. (E15)

List of Cases cited:

## Text

700 INDIAN LAW REPORTS ALLAHABAD SERIES
the order of sanction, the same can be
raised/assailed before the trial court.

29. In view of the aforesaid
submissions and discussions, this Court
does not find any merit in this application.

30. Consequently, the application is
hereby dismissed.

31. However, the applicants-accused
persons are at liberty to raise their
grievance with respect to the invalidity of
the sanction, if any, before the trial court
concerned.
----------
(2023) 4 ILRA 700
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.03.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA- I, J.

Application U/S 482. No. 2556 of 2023

Nanhey Bhaiya @ Nanhan Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sanjay Singh Chauhan, Sri Alok Kumar
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-Section
216-Addition
of
Section
304B I.P.C. against the applicant on the
basis of an application moved by the first
informant -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-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- Result-Impugned
orders unsustainable and deserve to be
quashed .
Application U/s 482 CrPC disposed off. (E15)

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 Ajai Kumar
Srivastava-I, J.)

1. Heard learned counsel for the
applicants, Sri Alok Saran, learned A.G.A.
for the State and perused the entire record.

2. In view of the order, which is
proposed to be passed today, notice to
opposite party No.2 is hereby dispensed
with.

3. The instant application under
Section 482 Cr.P.C. has been filed by the
accused/ applicants praying inter alia
following relief:-

"(i) To quash the impugned order
dated 29.09.2022 passed in Case No.
2032/2015 arising out of Crime No.-
144/1998 U/s- 498A/304B IPC & 3/4 D.P.
Act P.S. Behta Gokul District Hardoi and
the order dated 03.02.2023 by which
revision petition of the petitioners has been
rejected in Criminal Revision No. 209/2022
contained here with as Annexure No.2 & 3
to this affidavit."

4. Learned counsel for the applicants
has submitted that the impugned order
dated 29.09.2022, whereby the learned trial
4 All. Nanhey Bhaiya @ Nanhan Singh & Ors. Vs. State of U.P. & Anr.
701
court has held that the case under Section
304B I.P.C. is also made out against the
present applicants, has been passed by the
learned trial court in exercise of power
vested in it by virtue of Section 216
Cr.P.C., which is evident from the
impugned order dated 29.09.2022 itself.
However, he submits that the same has
been passed on an application moved either
by the accused or the complainant/ first
informant.

5. His next submission is that the
impugned order dated 29.09.2022, in
respect of addition of Section 304B I.P.C.
against the present applicant on the basis of
an application moved by the first informant
of this case, is not maintainable. Therefore,
the impugned order dated 29.09.2022 is
patently illegal and against the law
rendered by the Hon'ble Supreme Court in
P. Kartikalakshmi vs. Sri Ganesh and
another reported in (2017) 3 SCC 347.

6. His further submission is that the
applicants
have
preferred
a
criminal
revision bearing No.209 of 2022 against the
impugned order dated 29.09.2022, which
has been rejected by the learned revisional
court without appreciating the aforesaid
facts
vide
impugned
order
dated
03.02.2023, which is also an abuse of
process of this Court. Therefore, the
impugned orders dated 29.09.2022 and
03.02.2023 are liable to be quashed.

7. Per contra, learned A.G.A. for the
State has vehemently opposed the prayer
made by learned counsel for the applicants.
However, he has been unable to dispute the
aforesaid factual submissions advanced by
the learned counsel for the applicants.

8. Having heard the learned counsel
for the applicants, learned A.G.A. for the
State and upon perusal of record, it
transpires that the impugned order dated
29.09.2022 came to be passed on an
application moved by the first informant,
Sushil Kumar Singh, under Section 216
Cr.P.C. Thereafter, the applicants preferred
a criminal revision bearing No.209 of 2022
against
the
impugned
order
dated
29.09.2022, which has also been rejected
by the learned revisional court.

9. In Hasanbhai Valibhai Qureshi
vs. State of Gujarat and others reported
in (2004) 5 SCC 347, the Hon'ble Supreme
Court, while dealing with scope of Section
216 Cr.P.C., in paragraph No.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."

10. Recently, the Hon'ble Supreme
Court in P. Kartikalakshmi's case (supra)
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
702 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

11. Having regard to aforesaid settled
legal position, the impugned orders dated
29.09.2022
and
03.02.2023
are
unsustainable as the same are abuse of
process of this Court, which deserve to be
quashed and the same are hereby quashed.

12. It is made clear that the learned
trial court concerned shall be at liberty to
pass appropriate order keeping in view the
provisions
contained
in
Section
216
Cr.P.C., on its own instance and also
keeping in view the observations made
4 All. Pankaj Yadav Vs. State of U.P. & Ors.
703
herein above after affording opportunity of
hearing to all concerned parties.

13. With the aforesaid observations/
directions, the instant application under
Section 482 Cr.P.C. stands disposed of.
----------
(2023) 4 ILRA 703
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.03.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA- I, J.

Application U/S 482. No. 2793 of 2023

Pankaj Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ram Kinkar Upadhyay

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code1860-Sections 376 -The Protection of
Children from Sexual Offences Act, 2012Sections 3 & 4-Offence of rape is not
private in nature rather it has a serious
adverse impact on society-No justification
to quash the proceedings against the
applicant
on
the
basis
of
alleged
compromise between the accused and the
victim.

Application U/s 482 CrPC disposed off. (E15)

List of Cases cited:

1. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335

2. Rathish Babu Unnikrishnan Vs St. (NCT of
Delhi), 2022 SCC OnLine SC 513
3. Satish Kumar Jatav Vs St. of U.P., 2022
LiveLaw (SC) 488

4. Ramveer Upadhyay Vs St. of U.P., AIR 2022
SC 2044

5. Narinder Singh & ors. Vs St. of Punjab & anr.
(2014) 6 SCC 466

6. Daxaben Vs St. of Guj. & ors. 2022 SCC
OnLine SC 936

7. (Om Prakash Vs St. of U.P. & anr. -
Application U/s 482 No.8514 of 2023)

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Sri Jagendra, Advocate has put in
appearance on behalf of opposite party
No.2 by filing his vakalatnama in Court
today, which is taken on record.

2. Counter affidavit filed today by the
learned counsel for opposite party No.2 is
also taken on record.

3. Heard Sri Ram Kinkar Upadhyay,
learned counsel for the applicant, Sri Alok
Saran, Advocate assisted by Sri Himanshu
Suryavanshi, learned A.G.A. for the State,
Sri Jagendra, learned counsel for opposite
party No.2 and perused the entire record.

4. The instant application under
Section 482 Cr.P.C. has bee filed by the
accused/ applicant for quashing the entire
criminal proceedings of Sessions Trial
No.743 of 2019 (State vs. Pankaj) as well
as charge sheet dated 12.11.2019 and the
summoning order dated 06.12.2019 passed
by the learned Additional District Judge-I/
Special Judge POCSO Act, Sultanpur
arising out of Case Crime No.0447 of 2019,
under Sections 363, 366, 376, 506 I.P.C. &
Sections 3/4 POCSO Act, Police Station
Jaisinghpur, District Sultnapur, pending in