# Rekha & Ors v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-05
- **Case number:** Application U/S 482 Cr.P.C. No. 19093 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rekha-ors-v-state-of-u-p-anr-46898
- **Pages:** 10

## Headnote

A. Criminal Law - Power to alter or add
any charge - Application u/s 482 Cr.P.C -
Indian Penal Code: Section 147, 148, 302,
306; Code of Criminal Procedure: Section
216 - The power u/s 216 to alter or add
any charge at any time before the
judgment is pronounced, is exclusive to
the Court and there is no right of any
party to raise a claim in regard to the
same as a matter of right. (Para 11, 17)

The Court can change or alter the charge if
there is defect or something is left out. The test
to be applied is that it must be founded on
material available on record and the principle
that has to be kept in mind is that the charge so
framed by the Magistrate is in accord with
materials produced before him or if subsequent
evidence comes on record. (Para 12, 14, 20)

In the case at hand, the F.I.R. had been lodged
under Sections 147, 148 and 302 IPC and after
investigation the charge-sheet was filed u/s 306
I.P.C. After examining the prosecution witnesses
upon an application moved on behalf of the
informants, the trial Court has duly considered
the facts and circumstances of the case and the
evidence, which was on record, to come to a
conclusion that the necessary alteration in the
charge was required and accordingly proceeded
to allow the application. (Para 18)

In case where a situation so demands if it
comes to the knowledge of the Court that a
necessity has arisen for the charge to be altered
or added, the Court may do so on its own or
upon an application of the parties. (Para 19)

B. The contention relating to the defence
of the accused which seeks to impeach the
veracity of the depositions made by the
prosecution
witnesses
would
be
a
question to be seen at the trial and need
not be determined at the time of framing
of charge. The stage of appreciation of
evidence on merit by the Court comes up only
3 All. Rekha & Ors. Vs. State of U.P. & Anr.
467
after the charges have been framed and the trial
has commenced. For the purpose of framing of
charge the Court only needs to prima facie
determine that there exists sufficient material for
the commencement of trial. (Para 21)

Application dismissed.(E-3)

Precedent followed:

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In view of the law as recorded
above, it is very well settled that power of
''re-investigation' is not available to the
Magistrate and can be exercised only by a
superior Court. What is also relevant is that
the power of further investigation should
also be exercised based upon some material
and it cannot be based on whims and
fancies of an authority which have not
initially investigated the matter and in any
event, the re-investigation is not at all
permissible that too at the behest of a new
authority without there being anything on
record to have suggested that there is a
valid ground for re-investigation. Needless
to add that re-investigation as held by
Supreme Court can be directed only by a
superior Court that too on the basis of some
material.

19. In view of the facts and law
discussed above, I am of the firm view that
the order dated 14.10.2004 is wholly
illegal, arbitrary and contrary to mandate of
Section 173 (8) of the CrPC on both the
counts i.e. lack of power for directing reinvestigation;
secondly,
lack
of
any
material ground before it leading to passing
of the said order. Accordingly, the
application is allowed and the order dated
14.10.2004 is set aside.
----------
(2021)03ILR A466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19093 of 2020

Rekha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Birendra Kaushik

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Power to alter or add
any charge - Application u/s 482 Cr.P.C -
Indian Penal Code: Section 147, 148, 302,
306; Code of Criminal Procedure: Section
216 - The power u/s 216 to alter or add
any charge at any time before the
judgment is pronounced, is exclusive to
the Court and there is no right of any
party to raise a claim in regard to the
same as a matter of right. (Para 11, 17)

The Court can change or alter the charge if
there is defect or something is left out. The test
to be applied is that it must be founded on
material available on record and the principle
that has to be kept in mind is that the charge so
framed by the Magistrate is in accord with
materials produced before him or if subsequent
evidence comes on record. (Para 12, 14, 20)

In the case at hand, the F.I.R. had been lodged
under Sections 147, 148 and 302 IPC and after
investigation the charge-sheet was filed u/s 306
I.P.C. After examining the prosecution witnesses
upon an application moved on behalf of the
informants, the trial Court has duly considered
the facts and circumstances of the case and the
evidence, which was on record, to come to a
conclusion that the necessary alteration in the
charge was required and accordingly proceeded
to allow the application. (Para 18)

In case where a situation so demands if it
comes to the knowledge of the Court that a
necessity has arisen for the charge to be altered
or added, the Court may do so on its own or
upon an application of the parties. (Para 19)

B. The contention relating to the defence
of the accused which seeks to impeach the
veracity of the depositions made by the
prosecution
witnesses
would
be
a
question to be seen at the trial and need
not be determined at the time of framing
of charge. The stage of appreciation of
evidence on merit by the Court comes up only
3 All. Rekha & Ors. Vs. State of U.P. & Anr.
467
after the charges have been framed and the trial
has commenced. For the purpose of framing of
charge the Court only needs to prima facie
determine that there exists sufficient material for
the commencement of trial. (Para 21)

Application dismissed.(E-3)

Precedent followed:

1. P. Kartikalakshmi Vs Ganesh & anr., (2017) 3
SCC347 (Para 11)

2. Anant Prakash Sinha @ Anant Sinha Vs St. of
Har.& anr., (2016) 6 SCC 105 (Para 12)

3. Hasanbhai Valibhai Qureshi Vs St. of Guj. &
ors., (2004) 5 SCC 347 (Para 13)

4. Kantilal Chandulal Mehta Vs St. of Mah.,
(1969) 3 SCC 166 (Para 13)

5. C.B.I. Vs Karimullah Osan Khan, (2014) 11
SCC 538 (Para 13)

6. Jasvinder Saini & ors. Vs State (Government
of NCT of Delhi), (2013) 7 SCC 256 (Para 13)

7. Thakur Shah Vs Emperor, AIR 1943 PC 192 (Para 14)

8. Harihar Chakravarty Vs St. of W.B., AIR 1954
SC 266 (Para 14)

9. Dr. Nallapareddy Sridhar Reddy Vs St. of A.P.
& ors., (2020) 12 SCC 467 Para 15)

Present application has been filed seeking
quashing of order dated 28.08.2020,
passed
by
Additional
Session
Judge,
Mathura.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Sri Birendra Kaushik, learned
counsel for the applicants and Sri Pankaj
Saxena, learned A.G.A.-I appearing for the
State-opposite party.

2. The present application under
Section 482 Cr.P.C. has been filed seeking
to quash the order dated 28.08.2020 passed
by the Additional Session Judge, Court
Room No.3, Mathura, in exercise of powers
under Section 216 Cr.P.C., in Session Trial
No. 234 of 2016 (State Vs. Smt. Rekha and
others) under Section 306 I.P.C. Police
Station Jamunapar District Mathura.

3. Briefly stated the facts of the case
are that an F.I.R. dated 17.01.2016 was
lodged by the opposite party no. 2 against
the applicants which was registered as Case
Crime No.0012 of 2016 under Sections
147, 148 and 302 I.P.C. at Police Station
Jamunapar,
District
Mathura.
After
investigation the police submitted a chargesheet against the applicants under Section
306 I.P.C. on 17.04.2016 and cognizance
on the charge-sheet was taken by the
Additional Chief Judicial Magistrate, IV,
Mathura on 06.05.2016.

4. The statements of the prosecution
witnesses were recorded and thereafter an
application ( paper no. 68 Kha) was moved
by the informant before the court to alter
the charge from that under Section 306 to
Section
302
I.P.C.
The
informant
contended that the F.I.R. was registered
under Sections 147, 148 and 302 I.P.C. and
despite sufficient evidence being collected,
the charge-sheet was filed by the police
only under Section 306 I.P.C. It was
contended that the statements of the
prosecution witnesses which had been
recorded indicated that the charge under
Section 302 was also made out and
accordingly the application had been filed
for altering of the charge.

5. The accused filed their objections
(paper no. 74 Kha) seeking to contend that
the application filed under Section 216
Cr.P.C. was against the provisions of law
and the criminal proceedings had been
468 INDIAN LAW REPORTS ALLAHABAD SERIES
initiated maliciously with a view to falsely
implicate the accused.

6. The trial judge, upon due
consideration of the contentions of the
parties, the material on record and also
the evidence of the prosecution witness,
has passed an order under Section 216
Cr.P.C. accepting the application for
altering of the charge. Aggrieved against
the
aforesaid
order,
the
present
application under Section 482 Cr.P.C. has
been filed by the accused-applicants.

7. The principal contention sought
to be raised by the counsel for the
applicants is that none of the witnesses
produced by the prosecution before the
court was an eye witness and as such
their statements could not have been
relied upon by the trial judge. The other
argument raised is that the applicants
have been falsely implicated and the
proceedings are malicious.

8. Sri Pankaj Saxena, learned
A.G.A.-I appearing for the State-opposite
party points out that the learned trial
judge has duly considered the entire facts
and circumstances of the case and the
statements
of
all
the
prosecution
witnesses. He also points out that one of
the
statements
which
have
been
considered by the trial judge is that of
P.W. 2 who claims to be an eye-witness
and as such the contention of the learned
counsel for the petitioner is that none of
the
statements
which
have
been
considered is of an eye-witness is
factually incorrect. The other contention
which is sought to be raised on behalf of
the applicants relates to their defence
which may be raised at the appropriate
stage before the trial judge and cannot be
a ground to challenge the order passed
under Section 216 Cr.P.C.

9. Rival contentions now fall for
consideration.

10. In order to appreciate the
controversy, the relevant provision under
Section 216 Cr.P.C. may be adverted to.

"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 had been already obtained
for a prosecution on the same facts as
those on which the altered or added
charge is founded."
3 All. Rekha & Ors. Vs. State of U.P. & Anr.
469

11. The ambit and scope of powers of
the trial court to alter the charge under
Section 216 Cr.P.C. fell for consideration
in P. Kartikalakshmi Vs. Ganesh and
another1, wherein it has been held that the
power under Section 216 to alter or add any
charge at any time before the judgment is
pronounced, is exclusive to the Court and
there is no right of any party to raise a
claim in regard to the same as a matter of
right. The observations made in the
judgment in this regard are as follows :-

"6....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 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 & 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 jeopardized."

12. The question as to when court can
alter or add to any charge while exercising
powers under Section 216 Cr.P.C. and also
the duty of court while adding/altering
charge and the materials which may be
considered
therefor
came
up
for
consideration in Anant Prakash Sinha @
Anant Sinha Vs. State of Haryana and
another2, and it was held that the court can
change or alter the charge if there is defect
or something is left out. The test to be
applied is that it must be founded on
material available on record and the
principle that has to be kept in mind is that
the charge so framed by the Magistrate is in
accord with materials produced before him
or if subsequent evidence comes on record.

13. Taking into consideration the
earlier decisions in Hasanbhai Valibhai
Qureshi Vs. State of Gujarat and
others3, Kantilal Chandulal Mehta Vs.
470 INDIAN LAW REPORTS ALLAHABAD SERIES
State
of
Maharashtra4,
C.B.I.
Vs.
Karimullah Osan Khan5, and Jasvinder
Saini and others vs. State (Government
of
NCT
of
Delhi)6,
the
following
observations were made.

"9. The aforesaid provision has
been interpreted in Hasanbhai Valibhai
Qureshi, (2004) 5 SCC 347, wherein the
Court has observed:-

"Section 228 of the Code in
Chapter XVII and Section 240 in Chapter
XIX deal with framing of the charge during
trial before a Court of Session and trial of
warrant cases by Magistrates respectively.
There is a scope of alteration of the charge
during trial on the basis of materials
brought on record. Section 216 of the Code
appearing
in
Chapter
XVII
clearly
stipulates that any court may alter or add to
any charge at any time before judgment is
pronounced. Whenever such alteration or
addition is made, the same is to be read out
and informed to the accused."

10.
In
Hasanbhai
Valibhai
Qureshi, reference was made to Kantilal
Chandulal Mehta v. State of Maharashtra
wherein it has been ruled that the Code
gives ample power to the courts to alter or
amend a charge provided that the accused
has not to face a charge for a new offence
or is not prejudiced either by keeping him
in the dark about the charge or in not giving
him full opportunity of meeting it and
putting forward any defence open to him on
the charge finally preferred against him.
Placing reliance on the said decision, it has
been opined that if during trial the trial
court
on
a
consideration
of
broad
probabilities of the case based upon total
effect of the evidence and documents
produced is satisfied that any addition or
alteration of the charge is necessary, it is
free to do so, and there can be no legal bar
to appropriately act as the exigencies of the
case warrant or necessitate.

11. In Jasvinder Saini v. State
(Govt. of NCT of Delhi), (2013) 7 SCC
256, the charge- sheet was filed before the
jurisdictional
Magistrate
alleging
commission of offences under Sections
498-A, 304-B, 406 and 34 IPC against the
appellant
Nos.
1
to
4
therein.
A
supplementary charge-sheet was filed in
which the appellant Nos. 5 to 8 therein
were implicated for the case to which
Section 302 IPC was also added by the
investigating officer. After the matter was
committed to the Court of Session, the trial
court came to the conclusion that there was
no evidence or material on record to justify
framing of a charge under Section 302 IPC,
as a result of which charges were framed
only under Sections 498-A, 304-B read
with Section 34 IPC. When the trial court
was proceeding with the matter, this Court
delivered the judgment in Rajbir v. State of
Haryana and directed that all the trial courts
in India to ordinarily add Section 302 to the
charge on Section 304-B IPC so that death
sentences could be imposed in heinous and
barbaric crimes against women. The trial
court noted the direction in Rajbir and
being duty-bound, added the charge under
Section 302 IPC to the one already framed
against the appellant therein and further for
doing so, it placed reliance on Section 216
CrPC. The said order was assailed before
the High Court which opined that the
appearance of evidence at the trial was not
essential for framing of an additional
charge or altering a charge already framed,
though it may be one of the grounds to do
so. That apart, the High Court referred to
the
autopsy
surgeon's
report
which,
according to the High Court, provided
prima facie evidence for framing the charge
under Section 302 IPC. Being of this view,
3 All. Rekha & Ors. Vs. State of U.P. & Anr.
471
it declined to interfere with the order
impugned.
12. This Court adverting to the facts held
thus : (Jasvinder Saini case, SCC p.262,
para 15)

"15. It is common ground that a
charge under Section 304-B IPC is not a
substitute
for
a
charge
of
murder
punishable under Section 302. As in the
case of murder in every case under Section
304-B also there is a death involved. The
question whether it is murder punishable
under Section 302 IPC or a dowry death
punishable under Section 304-B IPC
depends upon the fact situation and the
evidence in the case. If there is evidence
whether direct or circumstantial to prima
facie support a charge under Section 302
IPC the trial court can and indeed ought to
frame a charge of murder punishable under
Section 302 IPC, which would then be the
main charge and not an alternative charge
as is erroneously assumed in some quarters.
If the main charge of murder is not proved
against the accused at the trial, the court
can look into the evidence to determine
whether the alternative charge of dowry
death punishable under Section 304-B is
established. The ingredients constituting
the two offences are different, thereby
demanding appreciation of evidence from
the perspective relevant to such ingredients.
The trial court in that view of the matter
acted mechanically for it framed an
additional charge under Section 302 IPC
without adverting to the evidence adduced
in the case and simply on the basis of the
direction issued in Rajbir case. The High
Court no doubt made a half-hearted attempt
to justify the framing of the charge
independent of the directions in Rajbir
case, but it would have been more
appropriate to remit the matter back to the
trial court for fresh orders rather than
lending support to it in the manner done by
the High Court."

It is appropriate to note here, the
Court further observed that the annulment
of the order passed by the Court would not
prevent the trial court from re-examining
the question of framing a charge under
Section 302 IPC against the appellant
therein and passing an appropriate order if
upon a prima facie appraisal of the
evidence adduced before it, the trial court
comes to the conclusion that there is any
room for doing so. In that context,
reference was made to Hasanbhai Valibhai
Qureshi.

Xxx

13. In Karimullah Osan Khan,
(2014) 11 SCC 538, the Court was
concerned with the legality of the order
passed by the Designated Court under the
Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987 for Bomb Blast
Case,
Greater
Bombay
rejecting
the
application filed by the Central Bureau of
Investigation (for short "CBI") under
Section 216 CrPC for addition of the
charges punishable under Section 302 and
other charges under the Penal Code and the
Explosives Act read with Section 120-B
IPC and also under Section 3(2) of the
Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987. The Designated
Court framed charges in respect of certain
offences and when the CBI filed an
application for addition of the charge under
Section 302 IPC and other offences, the
Designated Court rejected the application
as has been indicated earlier. In the said
context, the Court proceeded to interpret
the scope of Section 216 CrPC. Reference
was made to the decisions in Jasvinder
Saini (supra) and Thakur Shah v. King
Emperor. Proceeding further, it has been
ruled thus:-
472 INDIAN LAW REPORTS ALLAHABAD SERIES

"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. (See Harihar Chakravarty
v. State of W.B.). Merely because the
charges are altered after conclusion of the
trial, that itself will not lead to the
conclusion that it has resulted in prejudice
to
the
accused
because
sufficient
safeguards have been built in Section 216
CrPC and other related provisions."

14. A similar view has been taken in
Central Bureau of Investigation Vs.
Karimullah Osan Khan5, wherein it
was held that Section 216 Cr.P.C. gives
considerable powers to trial court and
that it can alter and add any charge
subject to the conditions mentioned
therein and that the powers to be
exercised are very wide. Referring to the
earlier decisions in Thakur Shah vs.
Emperor7, Jasvinder Saini and others
vs. State (Government of NCT of
Delhi)6 and Harihar Chakravarty Vs.
State of West Bengal,8 it was stated thus
:-

"15. This Court in Jasvinder
Saini v. State (Government of NCT of
Delhi) (2013) 7 SCC 256, had an
occasion to examine the scope of Section
216 CrPC and held as follows:

"11.. the court's power to alter
or add any charge is unrestrained
provided such addition and/or alteration
is
made
before
the
judgment
is
pronounced. Sub-sections (2) to (5) of
Section 216 deal with the procedure to be
followed once the court decides to alter
or add any charge. Section 217 of the
Code deals with the recall of witnesses
when the charge is altered or added by
the court after commencement of the
trial. There can, in the light of the above,
be no doubt about the competence of the
court to add or alter a charge at any time
before the judgment. The circumstances
in which such addition or alteration may
be made are not, however, stipulated in
Section 216. It is all the same trite that
the question of any such addition or
alternation would generally arise either
because the court finds the charge already
framed to be defective for any reason or
because such addition is considered
necessary after the commencement of the
trial having regard to the evidence that
may come before the court.

12. In the case at hand the
evidence assembled in the course of the
investigation and presented to the trial
3 All. Rekha & Ors. Vs. State of U.P. & Anr.
473
court was not found sufficient to call for
framing a charge under Section 302 IPC.
....."

16. The Privy Council, as early as
in Thakur Shah v. King Emperor, AIR
1943 PC 192, spoke on alteration or
addition of charges as follows :

"The alteration or addition is
always, of course, subject to the limitation
that no course should be taken by reason of
which the accused may be prejudiced either
because he is not fully aware of the charge
made or is not given a full opportunity of
meeting it and putting forward any defence
open to him on the charge finally
preferred."

17. Section 216 CrPC gives
considerable powers 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. (See Harihar Chakravarty
v. State of West Bengal AIR 1954 SC 266).
Merely because the charges are altered
after conclusion of the trial, that itself will
not lead to the conclusion that it has
resulted in prejudice to the accused because
sufficient safeguards have been built in in
Section 216 CrPC and other related
provisions."

15. The object and the scope of
powers to be exercised by the Court under
Section 216 Cr.P.C. and the test to be
adopted while deciding upon addition or
alteration of charge has been considered in
a recent judgment in Dr. Nallapareddy
Sridhar Reddy Vs. State of Andhra
Pradesh and others9, and referring to the
earlier precedents in P. Kartikalakshmi
Vs.
Ganesh
and
another1,
Anant
Prakash Sinha @ Anant Sinha Vs. State
of Haryana and another2, C.B.I. Vs.
Karimullah Osan Khan5 and Jasvinder
Saini and others vs. State (Government
of NCT of Delhi)6 on the point, the
principles with regard to the same have
been summarized as follows :-

"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
474 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.
"

16. The provisions of Section 216,
whereunder the court is authorised to alter
or add to the charge at any time before the
judgment is pronounced, find place in
Chapter XVII of the Code which relates to
"The Charge". The provisions contained
under section 216 have been discussed in
Dr. Nallapareddy Sridhar Reddy (supra),
in the following manner.

"16. Section 216 appears in
Chapter XVII of the Code of Criminal
Procedure. 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 persecutor 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 of
the Code of Criminal Procedure deals with
recalling of witnesses when the charge is
altered or added by the court after
commencement of the trial."

17. It is therefore seen that the scope
of powers of the court to alter or add any
charge under Section 216 Cr.P.C. is very
wide in nature and it confers exclusive
jurisdiction on the court in regard to such
matters which may be exercised at any time
before the judgment is pronounced. The
rights of the parties in regard to the same
would be extremely limited and no addition
or alteration or objection with regard
thereto, can be raised as a matter of right.

18. In the case at hand, the F.I.R. had
been lodged under Sections 147, 148 and
302 IPC and after investigation the chargesheet was filed under Section 306 I.P.C.
After examining the prosecution witnesses
upon an application moved on behalf of the
informants, the trial court has duly
considered the facts and circumstances of
the case and the evidence, which was on
3 All. Beekki Verma Vs. State of U.P. & Anr.
475
record, to come to a conclusion that the
necessary alteration in the charge was
required and accordingly proceeded to
allow the application.

19. In view of the settled legal
position in case of any omission in framing
of the charge if it comes to the knowledge
of the court trying the offence, the power to
alter the charge under Section 216 Cr.P.C.
is always vested in the Court to be
exercised at any time before the judgment
is pronounced. The section is in the nature
of an enabling provision for the Court to
exercise
its
power
under
certain
contingencies when the relevant facts with
regard thereto are brought to its notice. In
case where a situation so demands if it
comes to the knowledge of the Court that a
necessity has arisen for the charge to be
altered or added, the Court may do so on its
own or upon an application of the parties.

20. It may be reiterated that the test to
be applied in this regard is that it must be
founded on material available on record
and the principle that has to be kept in mind
is that the charge so framed by the
Magistrate is in accord with materials
produced before him or the subsequent
evidence which comes on record.

21. The contention relating to the
defence of the accused which seeks to
impeach the veracity of the depositions made
by the prosecution witnesses would be a
question to be seen at the trial and need not
be determined at the time of framing of
charge. The stage of appreciation of evidence
on merit by the court comes up only after the
charges have been framed and the trial has
commenced. For the purpose of framing of
charge the court only needs to prima facie
determine that there exists sufficient material
for the commencement of trial.

22. Counsel for the applicants has not
been able to point out any material error or
irregularity in the exercise of power under
Section 216 Cr.P.C. so as to persuade this
Court to exercise its inherent jurisdiction
under Section 482 Cr.P.C.

23. The application thus fails and is
accordingly dismissed.
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(2021)03ILR A475
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19490 of 2020

Beekki Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajendra Kumar

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Maintainability of
second FIR - Application u/s 482 Cr.P.C -
Indian Penal Code,1860 - Sections 41,
411, 413, 392 - Where the substance of
the allegation in the second F.I.R. is
different from the first F.I.R. and the same
is related to a different transaction, the
second F.I.R. would be permissible. (Para
10)

"Test of sameness" - In order to examine the
impact of more than one F.I.Rs., the court
would be required to look into the facts and
circumstances of each case and then apply the
'test of sameness' to find out whether both the
F.I.Rs. relate to the same incident and to the
same occurrence and whether they are in
regard to the incidents which are two or more