# Rajkumar v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-02
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-v-state-of-u-p-anr-50870
- **Pages:** 8

## Headnote

Constitution
of
India,1950-Article
227-Indian Penal Code, 1860-Sections
147, 148, 149, 323, 324, 325, 504, 506 &
326-Criminal
Procedure
Code,
1973Section 216-challenge to-addition of
charge
-Petitioner
argued
that
no
material was there on the basis of which
addition of section was made by the
court-While
at
the
framing
of
the
charge, application moved through the
APO was heard and the medical reports
showed grievous injuries-Hence, this is
not the case where once charged had
been framed and an addition of some
section was made subsequently.(Para
16)

B. The power to add or alter a charge is
comprehensive enough for remedying
defects, whether they arise out of the
framing of a charge or non-framing of
charge and whether they are discovered
at the inception of the trial or at
subsequent stages till prior to the
pronouncement
of
the
judgment.
Court's power to alter or add any
charge is unrestrained provided such
addition or alteration is made before
the
judgment
pronounced.
An
erroneous and improper charge may be
corrected under section 216 Cr.PC by
re-framing it properly or by addition or
altering it for an offence provable by
the evidence. It is discretionary power
and of course the discretion should be
exercised
judicially
and
not
arbitrarily.(Para 6 to 9)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

984 INDIAN LAW REPORTS ALLAHABAD SERIES
court is pending. Undisputably, the matter
for
grant
of
compensation
can
be
considered by the court whether it is trial
court
or
the
court
of
appeal
and
accordingly, the District Legal Services
Authority may be asked to verify the claim
and to proceed as per provisions of the
scheme.

13. In view of the above legal
position, this petition is finally disposed
of, with liberty to the petitioner to move
suitable application either before the
Court considering the matter of appeal or
before the concerned District Legal
Services Authority, within a month. In
case, the matter comes before the District
Legal Services Authority, it shall be
considered by the authority, as per law.
----------
(2024) 1 ILRA 984
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 8979 of 20223 (Criminal)

Rajkumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Tripathi, Sri Kunj Bihari
Pandey

Counsel for the Respondents:
G.A.

A.
Constitution
of
India,1950-Article
227-Indian Penal Code, 1860-Sections
147, 148, 149, 323, 324, 325, 504, 506 &
326-Criminal
Procedure
Code,
1973Section 216-challenge to-addition of
charge
-Petitioner
argued
that
no
material was there on the basis of which
addition of section was made by the
court-While
at
the
framing
of
the
charge, application moved through the
APO was heard and the medical reports
showed grievous injuries-Hence, this is
not the case where once charged had
been framed and an addition of some
section was made subsequently.(Para
16)

B. The power to add or alter a charge is
comprehensive enough for remedying
defects, whether they arise out of the
framing of a charge or non-framing of
charge and whether they are discovered
at the inception of the trial or at
subsequent stages till prior to the
pronouncement
of
the
judgment.
Court's power to alter or add any
charge is unrestrained provided such
addition or alteration is made before
the
judgment
pronounced.
An
erroneous and improper charge may be
corrected under section 216 Cr.PC by
re-framing it properly or by addition or
altering it for an offence provable by
the evidence. It is discretionary power
and of course the discretion should be
exercised
judicially
and
not
arbitrarily.(Para 6 to 9)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Vikul Vs St. of U.P. & anr. {Matters U/A 227
No. 2014 of 2023}

2. Anant Prakash Misra @ Anant Sinha Vs St. of
Har. & anr. (2016) 6 SCC 105

3. Dr Nallapareddy Sridhar Reddy Vs the St. of
A.P. & ors., CRLA No. 1934 of 2019

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

5. CBI Vs Karimullah Osan Khan (2014) 11 SCC
538

(Delivered by Mrs. Jyotsna Sharma, J.)
1 All. Rajkumar Vs. State of U.P. & Anr.
985

1. Heard Sri Vinod Kumar Tirpathi,
learned counsel for the petitioner and Sri
S.C. Mishra, learned AGA for the State.

2. This petition under Article 227 of
the Constitution has been filed with the
following reliefs:-

"I. Set aside the impugned
Judgment and Order dated 26.07.2023
passed by Additional Sessions Judge,
Court No. 3, Muzaffar Nagar in Criminal
Revision No. 284 of 2022 (Jaipal and
others Vs. State of U.P. and Another) as
well as impugned order dated 03.11.2022
passed by Additional Civil Judge (Junior
Division), Court No. 4, Muzaffar Nagar in
Criminal Case No. 694/9 of 2019 (State
Vs. Jaipal and others) arising out of Case
Crime No. 374 of 2017 under section 147,
148, 149, 323, 324, 325, 504, 506 I.P.C.
Police Station Kakrauli, District Muzaffar
Nagar. (Annexure No. 5 and 7 of the writ
petition).

II. Direct the learned court
below to delete the section 326 IPC which
is imposed upon the petitioner and other
co-accused persons which is not made out
against them."

3. Submissions of the petitioner are as
below:-

On the basis of an FIR case crime
no. 374 of 2017 was registered and
investigated upon. The accused persons
were chargesheeted and cognizance was
taken by the concerned Magistrate. During
the course of the proceeding, an application
dated 07.06.2018 was moved before the
Magistrate with the contention that besides
offences mentioned in the chargesheet, an
offence under section 326 IPC is prima
facie disclosed from prosecution papers,
therefore a charge under section 326 IPC
may also be framed. The court concerned
heard on the application and allowed the
same. Aggrieved by the order passed by the
Magistrate on 03.11.2022, the accused
persons preferred a criminal revision no.
284 of 2022 (Jaipal and others vs. State of
UP and another). This criminal revision
was decided by the District and Sessions
Judge, Muzaffar Nagar on 03.11.2022,
whereby the revision was rejected and the
order of the Magistrate was affirmed.

4. The contentions of the petitioner
are that false FIR in this case has been
lodged in collusion with the police, as a
counter blast to an FIR, case crime no. 373
pf 2017, lodged from his side. Further that
the injury reports of the injured in the
instant case are doubtful documents.
Another contention is that from the papers,
no offence under section 326 IPC is made
out and that the Judicial Magistrate passed
an arbitrary order. The revisional court also
did not consider the factual and legal
position and wrongly passed the order
affirming the order of the Magistrate.

5. One of the most vehement legal
arguments of the petitioner is that after
taking of cognizance, the Magistrate is not
empowered to add or alter any sections. It
is further argued that once charge has been
framed, the court cannot change or add any
section before any evidence has been led by
the
prosecution.
In
support
of
this
argument, the judgment given by learned
Single Bench of Allahabad High Court in
Matters under Article 227 No. 2014 of
2023 (Vikul vs. State of U.P. and
Another) has been placed before me.

6. Before I take up the legal issue
raised by the petitioner, it shall be useful to
refer to some more relevant facts as below:-
986 INDIAN LAW REPORTS ALLAHABAD SERIES

• After investigation, the police
filed charge-sheet under sections 147, 148,
149, 323, 324, 325, 504 and 506 IPC. The
court concerned took cognizance on
09.10.2017 and proceeded.

• The first informant moved an
application dated 07.06.2018 with the
submission that on the basis of the medical
report of injured-Yashveer prima facie,
besides other offence, offence under
section 326 IPC is clearly made out. The
investigating officer ignored the above
evidence and deliberately filed a chargesheet excluding the offence under section
326 IPC. The learned Assistant Prosecuting
Officer moved an application with similar
submissions and applied for framing of
charge in additional section 326 IPC
besides sections 147, 148, 149, 323, 324,
325, 504 and 506 IPC.

• The medical examination report
of Yashveer dated 15.08.2017 is on record.
The
perusal
of
the
above
medical
examination, admittedly done at primary
health centre by the medical officer in
charge, reveals that injured had 4 injuries
on his person, out of which injury no. 2 was
grievous
and
rest
were
kept
under
observation. Injury nos. 2 and 3 were found
to have been caused by some sharp edged
weapon. The description of injury no. 2 is
as below:-

"2.3 x 0.4 cm through and
through over left ear lobule. Margin are
clear cut. Clotted blood present. Part of left
ear lobule missing c̅ facial disfigurement."

7. Chapter XIX of Cr.P.C. provides
for procedure for trial of warrant cases by
Magistrate. Section 240 Cr.P.C. provides
that if upon consideration of police report
and the documents sent with it under
section 173 Cr.P.C. and making such
examination, if any, the Magistrate forms
an opinion that there is ground for
presuming that the accused has committed
an offence triable under this Chapter, which
such Magistrate is competent to try and
which, in his opinion, could be adequately
punished by him, he shall frame in writing,
a charge against the accused.

Chapter XVI of Cr.P.C. deals
with 'charge'. This Chapter begins with
Section 211 Cr.P.C. which says that every
charge under the Code shall state the
offence with which the accused is charged,
and the section of the law against which the
offence is said to have been committed
shall be mentioned in the charge.

The
charge
should
contain
particulars as to time, place etc as are
reasonably sufficient to give the accused
notice of the matter with which he is being
charged.

This Chapter comprehensively
deals with the matter of framing of charge,
what particulars are required to be
mentioned, the requirement of mentioning
the particular section of the law etc. The
purpose is to make the accused aware of all
the necessary details of the offence for
which he is going to face the trial, so that
he is not prejudiced in defending himself.
In my view, though the procedural part of
the proceeding before a trial court as regard
framing of charge is contained in section
240 Cr.P.C., but the substantive part is
dealt with Chapter XVI of Cr.P.C.. Chapter
XVI of Cr.P.C, apart from dealing with the
essential ingredients which should a charge
contain, also deals with another very
important and substantial provisions of law,
which is contained in section 216 Cr.P.C.
Section 216 Cr.P.C. is as below:-
1 All. Rajkumar Vs. State of U.P. & Anr.
987

"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."

8. At this juncture, it should be kept
in mind that section 240 provides for giving
an opportunity of hearing to both the sides.
It should also be kept in mind that when the
court takes cognizance as per provisions
under section 190, the accused is not in
picture. The Magistrate or the court
concerned has to depend upon the facts as
revealed from material on record collected
by the investigating officer or produced by
the complainant. At that stage, the accused
is having no opportunity to be heard in
defence or to place before the court, his
side of the story. In this limited sense, the
matter is dealt with by the court concerned
in an ex-parte manner at the time of
cognizance.
The
Magistrate
definitely
applies its mind at the time of cognizance,
however when the accused has appeared on
the scene, he is given an opportunity to be
heard before framing of charge and at that
time, the Magistrate can take a more
balanced view, on the basis of material
before it. The necessary corollary is that at
that time, the court has an opportunity to go
through the prosecution papers once again.
In case the Magistrate/court concerned
finds that from the very same papers, which
were available at the time of cognizance,
some other offence or say an offence under
which the chargesheet was not submitted, is
also made out, he cannot just turn a blind
eye. Where things are there on the face of
record, the court cannot look the other way
on such technical argument that once
cognizance has been taken, he cannot add
or alter the charge. It may happen that by
oversight or any reason of like nature, any
important fact may miss the attention of the
court. The court concerned/Magistrate is
not powerless, in such circumstances, to
correct its own mistake whenever it is
detected. The provisions of section 216
Cr.P.C. have been enacted to deal with
such eventualities. There may be myriad of
circumstances which may set the grounds
for altering or adding the charge. In my
view, one of such circumstances may
include
an
error
by
oversight.
The
legislature had definitely keeping in mind
the unforeseen circumstances, which may
988 INDIAN LAW REPORTS ALLAHABAD SERIES
arise in any criminal trial, has worded the
section
216
Cr.P.C.
in
a
most
comprehensive manner. Section 216(1)
Cr.P.C. has put no conditions or limitations
on the court's power to alter or add any
charge. Section 216(2) to section 216(5)
Cr.P.C. simply deal with the situation
which arises after alteration/addition of the
charge.

9. This power to add or alter a charge
is comprehensive enough for remedying
defects, whether they arise out of the
framing of a charge or non-framing of
charge and whether they are discovered at
the inception of the trial or at subsequent
stages till prior to the pronouncement of the
judgment. Court' power to alter or add any
charge is unrestrained provided such
addition and/or alteration is made before
the judgment is pronounced. An erroneous
and improper charge may be corrected
under Section 216 Cr.P.C. by re-framing it
properly or by addition or altering it for an
offence provable by the evidence. It is
discretionary power and of course the
discretion should be exercised judicially
and not arbitrarily.

10. The Supreme Court in Anant
Prakash Misra @ Anant Sinha vs. State of
Haryana and Another; (2016) 6 SCC 105
has observed in para-16 as below:-

"16. From the aforesaid, it is
graphic that the court can change or alter
the charge if there is defect or something
is left out. The test is, it must be founded
on the material available on record. It can
be on the basis of the complaint or the
FIR or accompanying documents or the
material brought on record during the
course of trial. It can also be done at any
time before pronouncement of judgment.
It is not necessary to advert to each and
every circumstance. Suffice it to say, if the
court has not framed a charge despite the
material on record, it has the jurisdiction
to add a charge. Similarly, it has the
authority to alter the charge. The principle
that has to be kept in mind is that the
charge so framed by the Magistrate is in
accord with the materials produced before
him or if subsequent evidence comes on
record. It is not to be understood that
unless evidence has been let in, charges
already framed cannot be altered, for that
is not the purport of Section 216 CrPC."

11. I find it useful to refer to the
observations of the Supreme Court in
Criminal Appeal No. 1934 of 2019 (Dr
Nallapareddy Sridhar Reddy vs. the State
of Andhra Pradesh and Others) decided
on 21.01.2020. The facts before the
Supreme Court were that after further
investigation, an additional/supplementary
chargesheet was filed by the investigating
officer, however that chargesheet was
never brought to the attention of the court
concerned or may be it just escaped the
attention of the court by oversight or some
reason of like nature. The trial court
proceeded and reached the stage of the
pronouncement of the judgment. At that
stage, an application for alteration of
charge under section 216 Cr.P.C. was
moved. The trial court on the basis of
additional/supplementary
chargesheet
proceeded to frame the charge under
section 406 and 420 IPC. The Supreme
Court refused to interfere in the order for
addition of charge observing that there
existed sufficient material for framing of
charge which necessitated the addtion and
dismissed the appeal. In the aforesaid
judgment the Supreme Court referred to
following
observations
by
two-Judge
Bench of itself in P. Kartikalakshmi vs. Sri
Ganesh; (2017) 3 SCC 347 as below:-
1 All. Rajkumar Vs. State of U.P. & Anr.
989

"The decision of a two-judge
Bench of this Court in P Kartikalakshmi v
Sri Ganesh12, dealt with a case where
during the course of a trial for an offence
under Section 376 of the IPC, an
application under Section 216 was filed to
frame an additional charge for an offence
under Section 417 of the IPC. Justice F M
Ibrahim Kalifulla, while dealing with the
power of the court to alter or add any
charge, held:

"6.
...
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
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."

In
the
same
judgment,
the
Supreme Court also referred to the
observations made in CBI v Karimullah
Osan Khan; (2014) 11 SCC 538.

The para reproduced by the
Supreme Court is being reproduced here as
below:-

"17. Section 216 CrPC gives
considerable power to the trial court, that
is, even after the completion of evidence,
arguments heard and the judgment
reserved, it can alter and add to any
charge,
subject
to
the
conditions
mentioned therein. The expressions "at
any time" and before the "judgment is
pronounced" would indicate that the
power is very wide and can be exercised,
in appropriate cases, in the interest of
justice, but at the same time, the courts
should also see that its orders would not
cause any prejudice to the accused.

18. Section 216 CrPC confers
jurisdiction on all courts, including the
Designated Courts, to alter or add to any
charge framed earlier, at any time before
the judgment is pronounced and subsections (2) to (5) prescribe the procedure
which has to be followed after that
addition or alteration. Needless to say, the
courts can exercise the power of addition
or modification of charges under Section
216 CrPC, only when there exists some
material before the court, which has some
connection or link with the charges
sought to be amended, added or modified.
In other words, alteration or addition of a
charge must be for an offence made out
by the evidence recorded during the
course of trial before the court."

12. The above judgment of the
Supreme Court reinforced the impression
that the court's power to alter or add any
charge is unlimited and unrestrained. The
990 INDIAN LAW REPORTS ALLAHABAD SERIES
charges can be altered or added at any time
till the judgment is pronounced. It may be
noted that the addition can be made at the
time of framing of any charge or at any
subsequent stage. The court's power to add
or alter charge cannot be taken away on the
basis of the fact that no cognizance was
taken in a particular section. This is not to
say that the power can be exercised in an
arbitrary manner. The only rider is that
there must be some material on record
justifying the addition or alteration. The
legislature has even given the power to
frame charge in alternative which further
goes on to show that the powers of the
courts are comprehensive and unrestrained.
The provisions of section 221(1) and (2)
Cr.P.C. give a glimpse of unlimited powers
of the court.

13. The judgment referred to by the
petitioner in Vikul case (supra), does not
apply to this case. In the above noted case,
the court dealt with a intervening stage
after taking of cognizance and before the
point of hearing on the issue of framing of
charge had reached.

14. Now coming to the facts of the
instant case. From the papers on record,
this is categorically revealed that the
application moved on behalf of the
prosecution through APO was heard at the
time of framing of charge. This is not the
case where once charge had been framed
and an addition of some section was made
subsequently. Hence, the arguments of the
petitioner that no new material was there on
the basis of which addition of section was
made by the court has no legs to stand.

15. In such circumstances, a pertinent
question may arise that the order of framing
of charge in additional section of section
326 IPC should be equated with taking of
cognizance in additional section. Such an
argument sans logic. If such argument is
accepted, the only inference can be drawn
that the court, in going through the
documents/material
produced
by
the
prosecution once again at the time of
hearing on charge is powerless in drawing
any inference for the purpose of framing of
charge. Such an interpretation would render
the section 240 Cr.P.C. redundant and
meaningless. The courts should remain
alive to some realities and accept the
proposition that there may arise situations
where the sections which are mentioned at
the time of taking cognizance may defer
with the sections of law, under which
appropriate charges are found to be
framable. To clarify my point of view, I
refer to section 190 Cr.P.C., which are as
below:-

"190. Cognizance of offences by
Magistrates.

1. Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
Sub-Section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint
of facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police
officer, or upon his own knowledge, that
such offence has been committed.

2. The Chief Judicial Magistrate
may empower any Magistrate of the
second class to take cognizance under
1 All. Smt. Gudiya Vs. State of U.P. & Ors.
991
Sub-Section (1) of such offences as are
within his competence to inquire into or
try."

The above provisions speak of
"taking cognizance of an offence". In my
view, offence is a wider term and cannot
be construed to mean only particular
sections defining any particular offence
in IPC or any other penal law. When an
offence is committed, more than one
sections may be attracted. At the time of
taking cognizance, the court shall broadly
look into material to find out what
offence/offences are made out, however
at the time of framing of charge, the court
is expected to look into material on
record and decide upon, in which
particular section the offence is falling.
This is not to say that at the time of
taking cognizance particular section of
law have not be mentioned or need not to
be mentioned. This is just to make a
distinction between the two stages in a
case. I do not agree with the proposition
that once cognizance of an offence is
taken
and
particular
sections
are
mentioned in the cognizance order, the
court shall have no scope to alter or add,
on those sections at the time of framing
of charge, whether at the stage of section
240 Cr.P.C. or section 246(1) Cr.P.C.

Broadly, there are four stages in
a criminal proceeding; the stage of taking
cognizance, the stage of framing of
charge, the stage of evidence and the
stage of judgment. A distinction has to be
maintained as regard duty entrusted on a
court, the powers of the court to proceed
and difference in judicial approach at
different stages. Definitely, as the case
proceeds from the stage of cognizance to
stage of framing of charge, and onwards
the proceedings begins to take shape, the
loose ends are tightened and the appraoch
becomes more and more penetrative.

16. In this case, at the time of framing
of charge, the learned trial court heard both
the sides. The attention of the court was
brought to the fact that medical report of
Yashveer showed grievous injuries caused
by sharp edged weapon and that there was
facial disfigurement and that the lobule of
the ear had been cut through and through
and was missing. On the basis of material
already on record, the court came to a
conclusion that besides charges under
sections under sections 147, 148, 149, 323,
324, 325, 504 and 506 IPC, a charge under
section 326 IPC is also needed to be framed
and accordingly proceeded.

17. In view of the above discussion, I
do not find any merit in the petition,
therefore, it is dismissed.
----------
(2024) 1 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 12091 of 2022 (Criminal)

Smt. Gudiya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raghuvansh Misra

Counsel for the Respondents:
G.A., Sri Alok Singh, Sri Deepak Dubey

A. Constitution of India, 1950-Article 227Criminal
Procedure
Code,1973-Section
311-In the instant case, revisional court
found that some of the material witnesses