# Om Prakash @ Jani v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Application U/S 482. No. 17003 of 2023
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-jani-v-state-of-u-p-anr-50975
- **Pages:** 12

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-Section
482-
No
Interference with Order Allowing Additional Charge
- The applicant challenged the order dated
23.11.2022 allowing an application to frame an
additional charge under Section 376 IPC - Held,
the order was lawful, as the trial court rightly
entertained the application as a piece of
information to rectify a defect in framing charges,
and
no
prejudice
to
the
applicant
was
demonstrated. (Paras 3, 16, 17, 20, 21)

B. Section 216 CrPC - Court's Power to Alter
Charges - The prosecution's application to add a
charge under Section 376 IPC was based on the
victim's Statement under Section 161 CrPC - Held,
Section 216 CrPC empowers courts to alter or add
charges at any stage before judgment, and the
trial court's decision to allow the application was
within its discretion to ensure a fair trial. (Paras 10,
14, 16, 17)

C.
Maintainability
of
Prosecution's
Application - The applicant argued that no
party has a right to move an application under
Section 216 CrPC - Held, the prosecution's
application was a legitimate means to highlight
an omission in framing charges, and the court
could act on such information to correct
defects, as supported by Anant Prakash Sinha
and Soundarajan. (Paras 5, 11, 13, 16)

D. Sufficiency of Material for Additional
Charge - The applicant challenged the
adequacy of evidence for framing a charge
under Section 376 IPC - Held, the victim's
Statement under Section 161 CrPC provided
prima facie material for the additional charge,
and the applicant could contest its sufficiency
at the trial stage. (Paras 8, 18)

E. Validity of Victim's Statement under
Section
161
CrPC
-
The
applicant
questioned
the
sanctity
of
the
victim's
Statement recorded by a lady constable
during
reinvestigation
-
Held,
issues
regarding the Statement's genuineness or
procedural compliance under the Immoral
Traffic (Prevention) Act, 1956, should be
raised before the trial court, not under
Section 482 CrPC. (Paras 5, 7, 19)

Application Dismissed.

List of Cases cited:

## Text

_Characters 0–39,745 of 41,849. This is a partial read: ask again with offset=39745 for what follows._

658 INDIAN LAW REPORTS ALLAHABAD SERIES
witness(es) concerned, shall be recalled for
the purpose and opportunity to crossexamine given. The trial shall be expedited
and concluded early.
----------
(2024) 4 ILRA 658
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 482. No. 17003 of 2023

Om Prakash @ Jani ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Chandra Mishra, Sri Abhishek Kumar
Mishra, Sri Daya Shankar Mishra (Sr. Adv.)

Counsel for the Opposite Parties:
G.A., Sri Raj Kumar Kesari

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-Section
482-
No
Interference with Order Allowing Additional Charge
- The applicant challenged the order dated
23.11.2022 allowing an application to frame an
additional charge under Section 376 IPC - Held,
the order was lawful, as the trial court rightly
entertained the application as a piece of
information to rectify a defect in framing charges,
and
no
prejudice
to
the
applicant
was
demonstrated. (Paras 3, 16, 17, 20, 21)

B. Section 216 CrPC - Court's Power to Alter
Charges - The prosecution's application to add a
charge under Section 376 IPC was based on the
victim's Statement under Section 161 CrPC - Held,
Section 216 CrPC empowers courts to alter or add
charges at any stage before judgment, and the
trial court's decision to allow the application was
within its discretion to ensure a fair trial. (Paras 10,
14, 16, 17)

C.
Maintainability
of
Prosecution's
Application - The applicant argued that no
party has a right to move an application under
Section 216 CrPC - Held, the prosecution's
application was a legitimate means to highlight
an omission in framing charges, and the court
could act on such information to correct
defects, as supported by Anant Prakash Sinha
and Soundarajan. (Paras 5, 11, 13, 16)

D. Sufficiency of Material for Additional
Charge - The applicant challenged the
adequacy of evidence for framing a charge
under Section 376 IPC - Held, the victim's
Statement under Section 161 CrPC provided
prima facie material for the additional charge,
and the applicant could contest its sufficiency
at the trial stage. (Paras 8, 18)

E. Validity of Victim's Statement under
Section
161
CrPC
-
The
applicant
questioned
the
sanctity
of
the
victim's
Statement recorded by a lady constable
during
reinvestigation
-
Held,
issues
regarding the Statement's genuineness or
procedural compliance under the Immoral
Traffic (Prevention) Act, 1956, should be
raised before the trial court, not under
Section 482 CrPC. (Paras 5, 7, 19)

Application Dismissed.

List of Cases cited:

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

2. Anant Prakash Sinha Vs St. of Har., (2016) 6
SCC 105

3. Dr. Nallapareddy Sridhar Reddy Vs St. of
Andhra Pradesh, (2020) 12 SCC 467

4. Soundarajan Vs St., 2023 SCC Online SC 242

5. Sushil Dhameja Vs St. of U.P., Application
U/S 482 No. 12344 of 2023

6. Kuldeep Vs St. of U.P., 2019 2 ACR 1947

7. Delhi Administration Vs Ram Singh, 1962
AIR (SC) 63

8. Krishnammal Vs Revenue Divisional Officer,
(2008) 0 CrLJ 2845
4 All. Om Prakash @ Jani Vs. State of U.P. & Anr.
659
(Delivered by 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 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 charge
under Section 376 I.P.C. against the present
applicant. Learned trial court, vide order
impugned dated 23.11.2022 (Anneuxre21), 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
660 INDIAN LAW REPORTS ALLAHABAD SERIES
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 coordinate 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 coordinate 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 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 reinvestigation 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.

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
4 All. Om Prakash @ Jani Vs. State of U.P. & Anr.
661
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.

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
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
662 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(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
4 All. Om Prakash @ Jani Vs. State of U.P. & Anr.
663
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 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.

(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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
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:- "

"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.
4 All. Om Prakash @ Jani Vs. State of U.P. & Anr.
665
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 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 wideranging power to change or alter any
charge. The use of the words "at any time
before judgment is pronounced" in SubSection (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
666 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 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
4 All. Om Prakash @ Jani Vs. State of U.P. & Anr.
667
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 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.

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
668 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
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
4 All. Ashok Sharma Vs. State of U.P. & Anr.
669
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.
----------
(2024) 4 ILRA 669
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE PRASHANT KUMAR, J.

Application U/S 482. No. 18652 of 2016
with
Application U/S 482. No. 12562 of 2016
with
Application U/S 482. No. 9430 of 2016

Ashok Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Daga, Sri Ashish Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Dinkar Lal, Sri Dipendra Kumar, Sri
Pradeep Kumar Rai, Sri Satendra Kumar, Sri
Suyash Agarwal, Sri Swetashwa Agarwal