# Radhey Lal v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-09
- **Case number:** Criminal Appeal No. 1014 of 2025
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-lal-v-state-of-u-p-anr-53452
- **Pages:** 10

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sectionss 147 & 323 - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(X) -BNSS,2023-Section 239
(216 Crpc)-The appellant challenged the
order dated 19.11.2024 passed by special
judge,
SC/ST-The
challenge
was
specifically against the dismissal of his
application u/s 239 of BNSS (formerly
section 216 Crpc) seeking alteration of
charges framed u/s 3(1)(X) of the SC/ST
Act- -The appellant filed an application
for alteration of charges under SC/ST Act
as he belongs to Schedule Caste and
section 3(1)X) which applies only to non -
SC/ST persons, cannot be invoked against
him-The Special Judge SC/ST rejected the
application-Held-Only courts have the
authority to alter charges under BNSS not
the parties-SC/ST Act provisions cannot
be invoked against SC/ST persons, and
courts must rectify such legal errors even
if brought up by the accused-The trial
court is at liberty to suo motu consider the
application and if convinced, correct the
erroneous charges.(Para 1 to 26)

The appeal was dismissed. (E-6)

List of Cases cited:

## Text

5 All. Radhey Lal Vs. State of U.P. & Anr.
813
(emphasis supplied by us)

30. Now coming to the issue of
absence of any injury on the person of
prosecutrix and its effect, we would like to
refer to a judgment rendered by Hon'ble
the Supreme Court in Sheikh Zakir vs.
State of Bihar3 wherein Hon'ble the
Supreme Court has held that the absence of
any injuries on the person of the
complainant may not by itself discredit the
statement of the complainant. Merely
because the complainant was a helpless
victim who was by force prevented from
offering serious physical resistance she
cannot be disbelieved. In this situation the
non-production of a medical report would
not be of much consequence if the other
evidence on record is believable.

31. In the aforesaid background,
we do not find any factual or legal infirmity
in the judgment impugned, which does not
suffer from any material irregularity also.

32. The appeal, which is bereft of
merit, stands dismissed.

33. As the appellants have already
served out the sentence awarded to them
and the fine imposed has already been
deposited by them, therefore, in such a
situation, they are not required to surrender

34. Let a copy of this judgment be
sent to learned trial court concerned
alongwith
trial
court
record
for
its
information and necessary compliance
forthwith.
----------
(2025) 5 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2025

BEFORE
THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1014 of 2025

Radhey Lal ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Mohammad Alam

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sectionss 147 & 323 - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(X) -BNSS,2023-Section 239
(216 Crpc)-The appellant challenged the
order dated 19.11.2024 passed by special
judge,
SC/ST-The
challenge
was
specifically against the dismissal of his
application u/s 239 of BNSS (formerly
section 216 Crpc) seeking alteration of
charges framed u/s 3(1)(X) of the SC/ST
Act- -The appellant filed an application
for alteration of charges under SC/ST Act
as he belongs to Schedule Caste and
section 3(1)X) which applies only to non -
SC/ST persons, cannot be invoked against
him-The Special Judge SC/ST rejected the
application-Held-Only courts have the
authority to alter charges under BNSS not
the parties-SC/ST Act provisions cannot
be invoked against SC/ST persons, and
courts must rectify such legal errors even
if brought up by the accused-The trial
court is at liberty to suo motu consider the
application and if convinced, correct the
erroneous charges.(Para 1 to 26)

The appeal was dismissed. (E-6)

List of Cases cited:

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

2. P. Kartikalakshmi Vs Sri Ganesh & anr.
(2017) 3 SCC 347
814 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Dr. Nallapareddy Sridhar Reddy Vs St. of A.P.
(2020) 12 SCC 467

4. K. Ravi Vs St. of T.N. & anr. (2024) SCC
OnLine SC 2283

5. Bharat Parikh Vs CBI & anr. (2008) 10 SCC
109

6. Ratilal Bhanji Mithani Vs St. of Mah. & ors.
(1979) SCC Cri. 405

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Mohammad Alam, learned
counsel for the appellant and Mr. Nirmal
Kumar Pandey and Sri Mayank Sinha
learned A.G.A. for the State.

2. The present appeal is directed
against the order dated 19.11.2024 passed
by Special Judge, SC/ST Act, Lucknow in
Session Case No.858 of 2015 (State Vs.
Radhey Lal and another) arising out of
Case Crime No.99 of 2010, under Sections
147, 323, I.P.C. and Section 3(1)(X) of the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989
(hereinafter referred to as 'the Act 1989'),
Police Station G.R.P. Charbagh, District
Lucknow whereby the application of the
appellant under Section 239 of Bharatiya
Nagarik
Suraksha
Sanhita,
2023
(hereinafter referred to as 'the BNSS')
(Section 216 Criminal Procedure Code) has
been dismissed.

3. The factual matrix of the
prosecution story is that an F.I.R. was
lodged on 20.3.2010 in Police Station
G.R.P. Charbagh by the informant Avinash
Kumar Gautam, alleging that the informant
while posting as Senior Ticket Examiner,
was leading the duty of open squad on
20.3.2010 who came from Train No.2232
on LKO/STN and was checking tickets.
After completing duty at about 10:15, he
went for urination in toilet of general
compartment of Train No.2232 and when
he was coming back, the appellant, namely,
Radhey Lal, who was sitting beside the
door while stretching his legs declined him
for exit and had pushed him and once he
resisted,
the
appellant
became
more
annoyed and scuffled with him and again
pushed him down at platform no.3 and
when he called O.N. Dwivedi, STE/LKO
from the window, he tried to put the things
normal and thereafter, he escaped himself
and informed the incident to his senior on
his mobile and he was instructed to lodge
the F.I.R. In between co-accused Pradeep
Khanna entered into the room along with
60-80 other unknown persons in aggressive
state of mind and asked that who is
Avinash Gupta and as soon as he told his
name, on the instigation of Pradeep
Khanna, he was cornered and several
persons started beating him, upon which,
intervention was made by Narendra Pratap
Singh, Senior Ticket Collector, Mrs. Meera
Mishra, Mrs. Deepa Joshi, Pradeep Dixit,
Rajnish Pandey, Sunil Kumar Bajpayee and
they tried to keep the things cool down but
the crowd became more aggressive and the
persons named above, who came for rescue
of him, were also beaten by Pradeep
Khanna and unknown persons, who were in
the form of crowd and they also outraged
the modesty of lady colleagues. It is also
alleged that Senior Ticket Examiner ran to
the G.R.P. office and intimated the incident
and thereafter, the Sub Inspector R.P.F.
along with one Mr. Dixit came to the
Ticket Collector office and anyhow they
took the informant out from the T.C. office,
even thereafter, about more than hundred
persons remained over there for 2 to 3
hours, as a result, the applicant was panic
and against and thereafter informing the
higher officers, he lodged the present F.I.R.
5 All. Radhey Lal Vs. State of U.P. & Anr.
815
4. The matter was investigated and
the charge sheet was filed on 14.7.2010 and
the
Magistrate
took
cognizance
on
7.9.2010. The charge sheet, against the
appellant, is filed under Section 147/323
I.P.C. read with Section 3(1)(X) SC/ST
Act.
The
case
was
committed
on
30.10.2015 and was registered before the
District Sessions Court, Lucknow.

5. It is an admitted fact that after
committal of the case to the Sessions Court,
the charges were framed under Section 323
read with Section 34 I.P.C. and Section
3(1)(X) of the SC/ST Act, vide order dated
30.11.2015, in Sessions Trial No.0000858
of 2015, State Vs. Radhey Lal and others.
The order dated 30.11.2015 is reproduced
as under:-

 "vkjksi

eS] ,l0,0,p0 fjtoh] fo'ks"k U;k;k/kh'k]
,l0lh0@,l0Vh0,DV y[kuÅ ,rn~}kjk vki 1- jk/ks
yky o 2- iznhi [kUuk dks fuEufyf[kr vkjksi ls
vkjksfir djrk gwW%&

 1- ;g fd fnukad 20-08-2010 dks le;
djhc 10-30 cts fnu LFkku Vh0lh0 vkfQl]
IysVQkeZ ua0 1- jsyos LVs'ku pkjckx Fkkuk {ks=
th0vkj0ih0 ftyk y[kuÅ esa vki us vius vU;
lkfFk;ksa ds lkFk feydj lkekU; vk'k; dh iwfrZ esa
oknh eqdnek vouh'k dqekj xkSre tks vuqlwfpr
tkfr dk lnL; gS] dks ekjus ihVus ds vk'k; ls
fof/k fo:} etek uktk;t dk;e fd;k] bl izdkj
ls mlds }kjk vki yksxks us ,d ,slk vijk/k dkfjr
fd;k tks fd Hkk0na0la0 dh /kkjk 147 ds v/khu
naMuh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa
gSA

 2- ;g fd mijksDr fnukad le; ,oa LFkku
ij vki yksxks us vius lkekU; vk'k; dh iwfrZ esa oknh
eqdnek vouh'k dqekj xkSre dks vius vU; lkfFk;ks
ds lkFk feydj ykr ?kwlksa ls ekjihV dj lkk/kkj.k
izd`fr dh pksVs igqapk;h vkSj bl izdkj vki yksxks us
mlds }kjk ,d ,slk vijk/k dkfjr fd;k tks fd
Hkk0n0la0 dh /kkjk 323 lifBr /kkjk 34 ds vUrxZr
n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa
gSA

 3- ;g fd mijksDr fnukad] le; ,oa
LFkku ij vki yskxks us oknh eqdnek vouh'k dqekj
xkSre dks ;g tkurs gq, fd og vuqlwfpr tkfr dk
lnL; gS] dks fof/k fo:} etek uktk;t dk;e dj
ekjihV dj lk/kkj.k pksVs igqapk;h o tkfr lwpd
'kCnks ls viekfur fd;kA bl izdkj ls mlds }kjk
vki yksxks us ,d ,slk vijk/k dkfjr fd;k tks fd
/kkjk 31⁄411⁄2 10 ,l0lh0@,l0Vh0 ,DV ds v/khu
naMuh; vijk/k gS vkSj bl U;k;ky; ds izalKku esa gSA

 ,rn~}kjk vkidks funsZf'kr fd;k tkrk gS
fd mijksDr vkjksi gsrq vki yksxks dk fopkj.k bl
U;k;ky; }kjk fd;k tk;sxkA"

6. It is the case of the appellant that
in Parcha No. 18 prepared by the
Investigating Officer, dated 15.5.2010, the
statement of the accused-appellant was
recorded but the caste of the accusedappellant is not mentioned while the
accused-appellant
had
told
the
Investigating Officer that he belongs to sub
caste 'Paasi' of the Scheduled Caste and
was working as class IV, in the railway
department.

Further once the charge was
framed under Section 3(1) (X) SC/ST Act,
the accused-appellant moved an application
under Section 239 BNSS on 19.1.2024
wherein it is stated that while submitting
application for bail on 2.4.2010 before the
A.C.J.M. (N.R.), Lucknow, he has also
mentioned his caste and further in para 8 of
the application, it was prayed that the
applicant belongs to scheduled caste and
therefore, charge under Section 3(1)(X) of
SC/ST Act cannot be framed against him
and therefore, the charges of aforesaid
offence may be altered/deleted.

7. The provision of Section 3(1)(X)
SC/ST Act is reproduced as under:-
816 INDIAN LAW REPORTS ALLAHABAD SERIES
 "3 (1) (X). intentionally insults or
intimidates with intent to humiliate a
member of a Scheduled Caste or a
Scheduled Tribe in any place within public
view;"

8. From perusal of the aforesaid
provision, it transpires that the punishment
for offences of atrocities against Scheduled
Caste and Scheduled Tribes prescribed
under Section 3 of the Act, 1989, starts
with the wordings, 'Whoever not being a
member of a Scheduled Caste or Scheduled
Tribe...'
shall
be
punishable
for
imprisonment which shall not be lesser
than six months but may extend to five
years with fine. This provision is in clarity
on its own that this offence under the
aforesaid provision would be chargeable
against a person who is not a member of
Scheduled Caste or Scheduled Tribe.

9. The accused-appellant has also
appended a copy of the caste certificate wherein
he has been shown of sub caste 'Paasi' of
Schedulced Caste.

10. Apparently, the application of the
accused appellant is not happily worded though
he is aggrieved with the order of framing of
charges against him under Section 3(1) (X) of
SC/ST Act. The application was moved under
Section 239 of BNSS (216 Cr.P.C.). The
provision of Section 239 of BNSS reads as
under:-

 "239. 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."

11. Undoubtedly, the provision
under Section 239 of BNSS provides that
the Court has exhaustive and wide ranging
power to change or alter any charge
whereas framing of charges is very crucial
step in criminal proceedings as this
subserves the purpose like the information
to the accused for specific offence for
which he is charged along with details of
allegation so that he would be aware of the
nature of the accusation. Further, it is the
basic foundation for a trial to proceed and
in that way, the accused can come with his
defence and, thus, in such process, he is
provided wide and fair chance to defend
him during the course of trial.

12. The moot question enunciated
in the present case is that whether the
5 All. Radhey Lal Vs. State of U.P. & Anr.
817
power under Section 239 BNSS (216
Cr.P.C.) is an exclusive power attributed to
the court or there is any right to any party
to seek addition or alteration by filing any
application as a matter of right. From a bare
reading of Section 239 BNSS, it is apparent
that the provision starts from the wordings
'any court may alter or add to any charge',
thus, it is abundantly clear that no party is
given any right to seek addition or
alteration by moving any application. Time
and again, the Apex Court has elaborated
this issue.

13. I may refer the case of Anant
Prakash Sinha Vs. State of Haryana
reported in (2016) 6 SCC 105, wherein
Hon'ble Apex Court has held that a court
can change or alter charge if there is a
defect or something is left out. Relevant
paras 21 & 22 of the Judgment aforesaid
are reproduced as under:-

 "21. Presently to the second
aspect. The 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. Hukam Chand, (1999) 7 SCC 467
; 1999 (Cri) 1277. In the said case, the
grievance of the appellant was that the
counsel engaged by him was not allowed by
the High Court to conduct the prosecution
in spite of obtaining a consent from the
Public Prosecutor concerned. 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: (Shiv Kumar case,
SCC p. 472, paras 13 and 14)

 "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.
818 INDIAN LAW REPORTS ALLAHABAD SERIES
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 f 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 case23 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 the 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 a not perceive
any error in the revisional order by which
the revisional court 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. The Apex Court in the case of
P. Kartikalakshmi Vs. Sri Ganesh &
another reported in (2017) 3 SCC 347, has
held in paras 6, 7 & 8 of the Judgement,
which read 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
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
5 All. Radhey Lal Vs. State of U.P. & Anr.
819
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 g 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."

15. The test has very categorically
been provided that charge must be founded
on material available on record and if
subsequent evidence comes on record, after
the charge is framed, the same can be
altered or changed and in fact it is
obligatory on the part of the court to see
that no prejudice is caused to the accused
so that he could have a fair trial. In fact, it
is trite that the purpose of framing charges
or to get know the formal accusation of an
individual regarding the offence committed
by him and further, even the provisions of
contents of the charge has also been
prescribed under Section 234 of BNSS, so
that the accused could know the specific
charges against him to defend himself,
appropriately.

16.
Further
Hon'ble
Supreme
Court, in the case of Dr. Nallapareddy
Sridhar Reddy Vs. State of Andhra
Pradesh reported in 2020 (12) SCC 467,
820 INDIAN LAW REPORTS ALLAHABAD SERIES
has held in para 16 of the Judgement as
under:-

 "16. Section 216 appears in
Chapter XVII CrPC. Under the provisions
of Section 216, the court is authorised to
alter or add to the charge at any time
before
the
judgment
is
pronounced.
Whenever such an alteration or addition is
made, it is to be read out and explained to
the accused. The phrase "add to any
charge"
in
sub-section
(1)
includes
addition of a new charge. The provision
enables the alteration or addition of a
charge based on materials brought on
record during the course of trial. Section
216 provides that the addition or alteration
has to be done "at any time before
judgment is pronounced". Sub-section (3)
provides that if the alteration or addition to
a charge does not cause prejudice to the
accused in his defence, or the prosecutor in
the conduct of the case, the court may
proceed with the trial as if the additional or
alternative charge is the original charge.
Sub-section (4) contemplates a situation
where the addition or alteration of charge
will prejudice the accused and empowers
the court to either direct a new trial or
adjourn the trial for such period as may be
necessary to mitigate the prejudice likely to
be caused to the accused. Section 217
CrPC deals with recalling of witnesses
when the charge is altered or added by the
court after commencement of the trial."

17. It has been held that Section
239 BNSS is an exclusive power of the
court to alter or change any charge and
further a mode of test regarding addition or
alteration of charge is also clarified therein
that if there is a material brought on
records, have a direct link or nexus with the
ingredients of the alleged offence, the same
can be taken for consideration regarding
additional or alteration of charges.

18. In the case of K.Ravi Vs. State
of Tamil Nadu and another, reported in
2024 SCC OnLine SC 2283, it has held in
para 7 of the Judgment, as under:-

 "7. From the above conspectus of
events, it clearly transpires that the
Respondent No. 2 after having failed to get
himself discharged from the Sessions Court
as well as from the High Court in the first
round of litigation, filed another vexatious
application before the Sessions Court
under Section 216 of Cr. P.C., after the
framing of charge by the Sessions Court,
for modification of the charge. The
Sessions Court having dismissed the said
application,
the
Respondent
No.
2
preferred the Revisional Application before
the High Court under Section 397 and 401
of Cr. P.C. The High Court in its unusual
impugned
order.
discharged
the
Respondent No. 2 (A-2) from the charges
levelled against him, though his earlier
application seeking discharge was already
dismissed by the Sessions Court and
confirmed by the High Court and that
position had attained finality. The High
Court utterly failed to realise that the order
impugned against it was the order passed
by the Sessions Court rejecting the
application of the Respondent No. 2
seeking modification of the charge framed
against him under Section 216 of Cr. P.C.,
and the said order was an order of
interlocutory in nature."

19. It is said in so many words that
filing of any application by any of the parties
for addition or alteration cannot be claimed as
a matter of right as the power vested in the
court for the same is exclusive.
5 All. Radhey Lal Vs. State of U.P. & Anr.
821
20. As far as the present case is
concerned, prima facie, it seems that the
learned trial court has framed the charge
under Section 3(1)(X) SC/ST Act including
other offences under I.P.C., against the
appellant whereas the appellant himself
belongs to the SC/ST caste. Bare reading of
Section 3 of the SC/ST Act, it is apparent
on its face that the same cannot be charged
on a person of the SC/ST caste.

21. In fact, on 19.1.2024, an
application was moved by the appellant
while praying that charges framed against
him under the SC/ST Act should be struck
off. Learned Trial Court considering the
application, passed the order on 19.11.2024
and rejected the application on the premises
that since the charges have already been
framed by his predecessor under the SC/ST
Act and, therefore, at the subsequent stage,
the same cannot be altered/changed by him,
whereas it has also been noted that the
appellant is of scheduled caste. In support
of the aforesaid finding, he considered the
law laid down in the cases of Bharat
Parikh
Vs.
Central
Bureau
of
Investigation and another reported in
(2008) 10 SCC 109 and Ratilal Bhanji
Mithani Vs. State Maharashtra and
others, reported in 1979 SCC (Cri) 405.
The ratio of the Judgments in the aforesaid
cases seems to be on different factual
matrix as the ratio which has been taken
into consideration by the learned trial court
is that once charge has been framed the
accused
cannot
be
discharged
under
Section 216 Cr.P.C. In fact, the application
of the appellant was not with respect to
discharge
rather
it
was
for
dropping/striking off of the charges framed
by the learned trial court under SC/ST Act.

22. Further, the learned trial court
applied its mind as if the order of framing
of charges is to be recalled whereas it is
apparent from the bare reading of Section
239 BNSS (216 Cr.P.C.) that the same is
with respect to the alteration in the charges.
Both the above Judgments, which are cited
in the order impugned dated 9.11.2024
seems to be on different factual matrix.
This Court is aware that if there is slight
difference in the factual matrix of the case,
the ratio of the said Judgement would not
apply. In the present matter, the issue is
with regard to the alteration of charges and
it is trite that the charges can be altered at
any stage prior to pronouncement of
Judgment.

23. At this stage, the question crops
up that if there is omission or for any
reason whatsoever the alteration needed
and it does not come into the knowledge of
the court concerned, which is trying the
offences, whether parties would have no
right to bring the same in the knowledge of
the court concerned. The law settled in P.
Kartikalakshmi (supra) is that there is
exclusive power of the court to alter the
charge and no power vests in any party to
seek alteration/change. The intent of
legislature seems to be clear regarding not
opening the way to any of the parties for
filing any application for alteration in the
charges as it may cause delay in the trial
proceedings but whether for this reason
alone, the party should be stopped even to
bring the error or omission in the charges
before the learned trial court.

24. It is apt to say that law is
settled in the case of P. Kartikalakshmi
(supra) and Anant Prakash Sinha (supra)
that no claim can be made by the parties for
alteration of charge as a matter of right but
there seems to be no restriction or obstacle
to move application for bringing the
omission or error in framing of the charges
822 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court and in this event, this
should be upto the wisdom of such trial
court to be aware of the error or omission,
if any, and if required, it may invoke suo
motu power to alter such charges.

25. In view of the aforesaid
submission and discussion, the order of
rejection cannot be approved to the extent
of considering ratio of the Judgment
rendered in the case of Bharat Parikh
(supra)
and
Ratilal
Bhanji
Mithani
(supra), but so far as the application filed
by applicant seeking alteration in the
charges as a matter of right, the same has
rightly been rejected by learned trial court.

26.
Resultantly,
the
Criminal
Appeal is hereby dismissed.

27. However, the learned trial court
can take the reference of the application to
the effect of correcting the defect, if any,
suo motu.

28. Interim order stands vacated.

29. Office shall communicate this
order to the trial court concerned forthwith.
----------
(2025) 5 ILRA 822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 1231 of 2023

Heera Kol ...Appellant
Versus
State of U.P.& Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Anil Kumar Ojha, Sri Sanjeev Kumar
Asthana

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Section 376(2)(i) & Section
5/6
of
POCSO
Act-Challenge
to
-
Conviction-Appellant was convicted for
allegedly committing penetrative sexual
assault on a 6 year old girl-The FIR and
eyewitness testimony did not mention
any
act
indicating
penetration-The
victim's statement u/s 164 Crpc lacked
clarity and consistency-medical evidence
/(PW-6) showed no injuries- A chance
witness (PW-7) could not identify the
victim in court-At trial the victim's
version
were
improved
and
not
corroborated
by
other
evidence-The
court held that the prosecution only
proved an act of "aggravated sexual
assault" u/s 7/9(m) of the POCSO Act,
not
penetrative
sexual
assault-The
sentence was accordingly reduced from
life imprisonment to 7 years rigorous
imprisonment u/s 10 of the POCSO ActSince the appellant had already spent
over 8 years in jail, the Court ordered his
immediate release, subject to payment
of fine.(Para 1 to 43)

The appeal is partly allowed. (E-6)

List of Cases cited:

Monu Vs St. of U.P. ,Neutral Citation No.-2025:
AHC-14721-DB

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Sandeep Jain, J.)

1. Heard Anil Kumar Ojha, learned
counsel for the appellant, Sri Nagendra
Kumar Srivastava, learned A.G.A. for the
State and perused the records.