# Suresh Kumar Shukla @ Suresh Dutt Shukla v. State of U.P. & Anr. 370 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 10 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Case number:** Application U/S 482 No. 5468 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-shukla-suresh-dutt-shukla-v-state-of-u-p-anr-370-indian-law-51182
- **Pages:** 31

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 216 - Deletion of
charge - Permissibility - Expression 'alter'
or 'add' is used - Scope - Six Principles
laid down in the context of expression
'alter' - Held, already framed charge can
be altered/ changed/ varied/ modified/
substituted/ amended at any stage before
the judgment is pronounced. However,
this should be done strictly in terms of law
propounded by the Hon'ble Apex Court in
this regard - High Court found no force in
the submission that the charge cannot be
deleted. (Para 34 and 35)

Application u/s 482 dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,911 of 88,820. This is a partial read: ask again with offset=39911 for what follows._

10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
369
Surendranath Tewari v. CBI, (2020)
9 SCC 636 : (2021) 1 SCC (Cri)
209] , the chance to prove the
allegations even for the purpose of
provisions of PMLA in the Court
are bleak. Therefore, we are of the
firm opinion that the chances to
prove those allegations in the Court
are very bleak. It is trite to say, till
the
allegations
are
proved,
the
appellant would be innocent. The High
Court by the impugned order [J. Sekar
v. SRS Mining, 2021 SCC OnLine Mad
13804] has recorded the finding
without due consideration of the letter
of the IT Department and other
material
in
right
perspective.
Therefore, in our view, these findings of
the High Court cannot be sustained.
23. Accordingly, we set aside
the impugned order [J. Sekar v. SRS
Mining, 2021 SCC OnLine Mad
13804] passed by the High Court.
Consequently, this appeal is allowed.
ECR
CEZO
19/2016
including
Complaint bearing No. 2 of 2017
stands quashed."

35. The settled position from the
above refereed judgments is to the effect that if
an accused has been exonerated and held
innocent in the disciplinary proceedings after
the allegations have been found to be
unsustainable, then the criminal prosecution
premised on the same/identical set of
allegations cannot be permitted to continue. The
reasoning for this conclusion/proposition in the
above referred judgments is that the standard of
proceedings in criminal cases is beyond
reasonable doubt which is far higher than
preponderance of probability, the standard of
proof required in disciplinary proceedings.
When the same witnesses could not be able to
prove/establish the same/identical charges in the
disciplinary proceeding, there is no purpose in
prosecuting the criminal proceedings where the
standard of proof required to establish the guilt
is far higher than the standard of proof required
to
establish
the
guilt
in
departmental
proceedings.

36. The reliability and genuineness of
the allegations against the applicant has
already been tested during the disciplinary
proceedings and the applicant has been
exonerated after taking note of the statements
of
witnesses
who
would
prove
the
same/identical
charges
in
the
criminal
proceedings. Accordingly, this Court is of the
view that in the present matter interference of
this Court is required and criminal proceedings
arising out of FIR No. 0271 of 2020 dated
13.05.2020, detailed above, are liable to be set
aside in exercise of power under Section 482
Cr.P.C..

37. For the reasons aforesaid, both
the application(s), indicated above, are
allowed.
Consequently,
the
entire
proceedings arising out of FIR No. 0271 of
2020 dated 13.05.2020 are quashed/set aside
qua the applicant/Jagdish Singh @ Jagdish
Kumar Singh .

38. Office is directed to send a copy
of this judgment to the trial Court forthwith.
----------
(2024) 10 ILRA 369
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.10.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482 No. 5468 of 2024

Suresh Kumar Shukla @ Suresh Dutt
Shukla ...Applicant
Versus
State of U.P. & Anr. ...Respondents
370 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Vimal Shukla

Counsel for the Respondents:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 216 - Deletion of
charge - Permissibility - Expression 'alter'
or 'add' is used - Scope - Six Principles
laid down in the context of expression
'alter' - Held, already framed charge can
be altered/ changed/ varied/ modified/
substituted/ amended at any stage before
the judgment is pronounced. However,
this should be done strictly in terms of law
propounded by the Hon'ble Apex Court in
this regard - High Court found no force in
the submission that the charge cannot be
deleted. (Para 34 and 35)

Application u/s 482 dismissed. (E-1)

List of Cases cited:

1. Criminal Revision No. 1026 of 2023; Dev
Narain Vs St. of U.P. & anr. decided on
20.07.2023

2. Sohan Lal & ors.. Vs St. of Raj.; (1990) 4 SCC
580

3. Vibhuti Narayan Chaubey @ Lala Chaubey &
ors.. Vs St. of U.P.; 2002 SCC OnLine All 1413

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

5. Dr. Nallapareddy Sridhar Reddy Vs St. of
Andhra Pradesh & ors..; (2020) 12 SCC 467

6.
Selvi
J.
Jayalalitha
Vs
Additional
Superintendent of Police; 2000 SCC OnLine Mad
1111

7. Tapti Bag Vs Patitpaban Ghosh; 1993 Crl.L.J.
3932

8. Ratilal Bhanji Mithani Vs St. of Maharashtra &
ors..; (1979) 2 SCC 179

9. Dalbir Singh Vs St. of U.P.; (2004) 5 SCC 334
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
applicant and Sri S.P.Tiwari and Sri Ajay
Kumar
Srivastava,
learned
counsel
appearing for the State of U.P. and perused
the record.

2. In view of proposition settled on
the issue involved in this case as also the
fact that two witnesses of prosecution have
already been examined before the trial
Court namely Arun Kumar/PW-1 and
Dileep Kumar Tiwari/PW-2, notice to
opposite party No.2 is dispensed with.

3. Present application has been
filed by the applicant challenging the order
dated 01.06.2024, whereby the Additional
District and Session Judge, Court No.03,
Gonda,
(in
short
"trial
Court"),
deleted/changed the charge under Section
306 IPC, framed on 11.05.2023 and framed
the charge under Section 302 IPC. Relevant
portion of the order dated 01.06.2024 is
extracted hereinunder:-

"अनभयोजन का प्रार्थयना पत्र 23 ख
अन्तगयत धारा-216 दं०प्र०सं० स्वीकार नकया जाता है
और धारा-306 भा०द०सं० का आरोप नवलोनपत कर
धारा-302 भा०दं०सं० का आरोप नवरनचत नकया
जाना न्यायोनचत है। अनभयुक्त धारा-302 भा०दं०सं०
के आरोप नवचरण हेतु नदनांक-10-06-2024 को
उपनस्र्थत हो।"

4. A perusal of order dated
01.06.2024, quoted above, indicates that
based upon statement of Arun Kumar/PW-1
and
Dlieep
Kumar
Tiwari/PW-2
an
application was preferred on 23.04.2024
under Section 216 Cr.P.C. with the prayer
that Charge under Section 306 IPC be
altered to Section 302 IPC.
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
371
5. Brief facts of the case, which are
relevant, as appears from the record, are to
the effect that an FIR bearing No. 198 of
2022 was lodged on 01.09.2022 under
Section 302 and 201 IPC. As per this FIR,
the deceased is the wife of the applicant
and the applicant is the main accused and
he committed the alleged crime (murdered
the
deceased)
on
account
of
illicit
relationship with her brother-in-law.

6. After lodging of FIR, the
investigation
was
carried
out
and
Investigating Officer, based upon the
evidence collected during investigation,
filed the Charge Sheet No.1, dated
08.01.2023 under Section 306 IPC.

7. Thereafter, the trial Court
framed the charges under Section 306 IPC
against the applicant and upon being denied
by the applicant, he was put to trial. To
establish its case, the prosecution examined
namely Arun Kumar/PW-1 and Dileep
Kumar Tiwari/PW-2 as witnesses of the
fact. These witnesses in their statements
before
trial
Court
levelled
specific
allegations against the applicant, according
to which, applicant had committed the
crime.

8. Based upon the statements of
Arun Kumar/PW-1 and Dileep Kumar
Tiwari/PW-2 the application under Section
216 CrPC was preferred by the prosecution
and the trial Court based upon the
deposition/statement
of
PW-1
altered/framed the charge against the
accused-applicant under Section 302 IPC.

9. Challenging the impugned order
dated 01.06.2024, learned counsel for the
applicant submitted that no doubt in
exercise of power under Section 216 CrPC
the trial Court can alter or add the charge at
any stage of proceedings including while
dictating the final judgment, but in exercise
of power under Section 216 CrPC, the trial
Court can't delete the charge. The charge
can only be altered or added. In the instant
case, the charge under Section 306 IPC,
earlier framed, has been deleted and the
charge under Section 302 IPC has been
framed. As such, interference of this Court
is required in the order dated 01.06.2024.

10. Learned counsel for the
applicant in support of his contention
placed reliance on the judgment dated
20.07.2023 passed by this Court in
Criminal Revision No. 1026 of 2023 (Dev
Narain vs. State of U.P. and Another).

11. Learned AGA opposed the
prayer, sought in the instant application. He
stated that order of trial Court is not liable
to be interfered with on the sole ground
pressed that it has no power to delete the
Charge. It is for the reason that after order
dated 01.06.2024 the trial would proceed
against the applicant under Section 302 IPC
and it is trite law that after appreciation of
evidence if it is found that an offence under
Section 302 IPC is not made out and that
the offence under Section 306 IPC is made
out then in that event an accused can be
convicted for offence under Section 306
IPC and if on appreciation of evidence no
offence is made out, the accused can be
acquitted. He also stated that this ground
would be sustainable if on account of
deletion of charge an accused would be
discharged and trial comes to an end.

12. Considered the aforesaid and
perused the record.

13. In order to decide the present
matter, it would be appropriate to take note
of some relevant provision(s) and the
372 INDIAN LAW REPORTS ALLAHABAD SERIES
pronouncement(s) related to the subject
matter of the present case.

14. Section 216 CrPC is
extracted hereinunder:-
"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."
15. Section 222 CrPC, reads as
under:-

"222. When offence proved
included in offence charged.-(1)
When a person is charged with an
offence
consisting
of
several
particulars, a combination of some
only
of
which
constitutes
a
complete minor offence, and such
combination is proved, but the
remaining
particulars
are
not
proved, he may be convicted of the
minor offence, though he was not
charged with it.
(2) When a person is
charged with an offence and facts
are proved which reduce it to a
minor offence, he may be convicted
of the minor offence, although he is
not charged with it.
(3) When a person is
charged with an offence, he may be
convicted of an attempt to commit
such offence although the attempt
is not separately charged. (4)
Nothing in this section shall be
deemed to authorise a conviction of
any minor offence where the
conditions
requisite
for
the
initiation of proceedings in respect
of that minor offence have not been
satisfied."

16. Section 224 CrPC, reads as
under:-

"224.
Withdrawal
of
remaining charges on conviction
on one of several charges.-When
a charge containing more heads
than one is framed against the
same
person,
and
when
a
conviction has been had on one or
more of them, the complainant, or
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
373
the
officer
conducting
the
prosecution, may, with the consent
of
the
Court,
withdraw
the
remaining charge or charges, or
the Court of its own accord may
stay the inquiry into, or trial of,
such charge or charges and such
withdrawal shall have the effect of
an acquittal on such charge or
charges, unless the conviction be
set aside, in which case the said
Court (subject to the order of the
Court setting aside the conviction)
may proceed with the inquiry into,
or trial of, the charge or charges so
withdrawn."

17. The Hon'ble Apex Court in the
case of Sohan Lal and Others vs. State of
Rajasthan, (1990) 4 SCC 580; held that the
accused-appellants namely Vijya Bai and
Jiya Bai (appellants No. 4 and 5 therein)
could be dealt with neither under Section
216 CrPC nor under Section 319 CrPC. In
this case, these accused-appellants were
discharged and thereafter in exercise of
power under Section 216 and 319 CrPC the
Magistrate
summoned
these
accused
alongwith
others
and
the
order
of
Magistrate was affirmed by the High Court
of Rajasthan. Relevant paras, to the view of
this Court, are extracted hereinunder:-

"3. On April 21, 1980 one
Shanti Lal lodged a report at
Bikaner Police Station stating
therein that the appellants and two
others namely Uttam Chand and
Hanuman Chand at about 2 p.m.
that day were pelting stones at the
informant's house causing damage
to it and that Durgabai, Tara and
Sunita who at the relevant time
were sitting at the chowk of the
house were injured. After recording
FIR No. 22 dated April 21, 1980
and on completion of investigation
police
framed
charges
under
Sections 147, 323, 325, 336 and
427 IPC and the charge-sheet was
forwarded
to
the
Judicial
Magistrate No. 2 Bikaner under
Section 173 CrPC. After taking
cognizance and after hearing the
arguments, the Judicial Magistrate,
Bikaner by his order dated October
3, 1980 in Criminal Case No. 165
of 1980 had been pleased to
discharge appellants 4 and 5,
namely, Vijya Bai and Jiya Bai of
all the charges levelled against
them. Appellants 1, 2 and 3,
namely, Sohan Lal, Padam Chand
and Vishnu were ordered to be
charged only under Section 427
IPC on the basis of site inspection
and injury report.
4. On February 25, 1982
the Assistant Public Prosecutor
submitted an application to the
Magistrate
under
Section
216
CrPC signed by Durga Bai stating:
"The accused have been
charged under Section 427 IPC,
whereas from the entire evidence
and the medical evidence prima
facie case under various sections
i.e. 147, 325 and 336 IPC is made
out. Hence it is prayed that accused
be charged in accordance with the
evidence
and
the
charge
be
amended in the light of the
evidence."

5. After recording the plea
of the accused persons, prosecution
led evidence and examined PW 1
Shanti Lal, PW 2 Sampat Lal, PW 3
Chagan Lal on May 12, 1982 and
PW 4 Durga Bai on July 8, 1982.
374 INDIAN LAW REPORTS ALLAHABAD SERIES
6. The learned Magistrate
on
September
8,
1982
after
referring
to
the
aforesaid
application
submitted
by
APP
dated February 25, 1982 and
hearing the APP and the learned
advocate for the accused and
discussing
the
evidence
and
observing that if any accused was
discharged of any charge under
any section then there would be no
bar for taking fresh cognizance and
reconsideration
against
him
according to Section 216 CrPC and
that the provision of Section 319
CrPC was also clear in that
connection, recorded the following
order:
"Hence
cognizance
for
offences under Sections 147, 427,
336, 323, 325 IPC is taken against
accused Sohan Lal, Padam Chand,
Smt. Vijya Bai, Jiya Bai, Vishnu,
Hanuman
Chand
and
Uttam
Chand. Orders for framing the
charges against accused Sohan Lal,
Padam Chand, Vishnu under the
aforesaid sections are passed and
accused Smt. Jiya Bai, Vijya Bai,
Uttam Chand and Hanuman Chand
be summoned through bailable
warrants in the sum of Rs 500 each.
File to come on October 20, 1982
for framing the amended charge
against
the
accused
present.
Exemption from appearance of
accused Vishnu Chand and Padam
Chand is cancelled until further
order. The advocate for the accused
shall present the said accused in
the court in future."
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12. Add to any charge
means the addition of a new
charge. An alteration of a charge
means changing or variation of an
existing charge or making of a
different charge. Under this section
addition to and alteration of a
charge or charges implies one or
more existing charge or charges.
When the appellants Vijya Bai and
Jiya Bai were discharged of all the
charges and no charge existed
against
them,
naturally
an
application under Section 216
CrPC was not maintainable in their
case. In cases of appellants Sohan
Lal, Padam Chand and Vishnu
against whom the charge under
Section 427 IPC was already in
existence there of course could
arise the question of addition to or
alteration of the charge. The
learned Magistrate therefore while
disposing of the application under
Section 216 CrPC only had no
jurisdiction
to
frame
charges
against the appellants Vijya Bai
and Jiya Bai. In his order the
learned Magistrate did not say that
he was proceeding suo motu
against Vijya Bai and Jiya Bai
though he said that Section 319
CrPC was also clear in this
connection.
13. As regards the other
three appellants, namely, Sohan
Lal, Padam Chand and Vishnu they
were already accused in the case.
Section 216 CrPC envisages the
accused and the additions to the
alterations of charge may be done
at any time before judgment is
pronounced.
The
learned
Magistrate on the basis of the
evidence on record was satisfied
that charges ought also to be
framed under the other sections
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
375
with which they were charged in
the charge-sheet. That was also the
prayer in the APP's application.
However the learned Magistrate
invoked
his
jurisdiction
under
Section 319 CrPC which says:
"319. Power to proceed
against other persons appearing to
be guilty of offence.- (1) Where, in
the course of any inquiry into, or
trial of, an offence, it appears from
the evidence that any person not
being the accused has committed
any offence for which such person
could be tried together with the
accused, the Court may proceed
against such person for the offence
which
he
appears
to
have
committed.
(2) Where such person is
not attending the Court, he may be
arrested or summoned, as the
circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending
the Court, although not under
arrest or upon a summons, may be
detained by such Court for the
purpose of the inquiry into, or trial
of, the offence which he appears to
have committed.
(4)
Where
the
Court
proceeds against any person under
sub-section (1) then-
(a)
the
proceedings
in
respect of such person shall be
commenced
afresh,
and
the
witnesses re-heard;
(b) subject to the provisions
of clause (a), the case may proceed
as if such person had been an
accused person when the Court
took cognizance of the offence upon
which the inquiry or trial was
commenced."
14. The crucial words in
the section are, 'any person not
being the accused'. This section
empowers the court to proceed
against persons not being the
accused appearing to be guilty of
offence. Sub-sections (1) and (2) of
this section provide for a situation
when a court hearing a case
against certain accused person
finds from the evidence that some
person or persons, other than the
accused before it is or are also
connected in this very offence or
any connected offence; and it
empowers the court to proceed
against such person or persons for
the offence which he or they
appears
or
appear
to
have
committed and issue process for the
purpose. It provides that the
cognizance against newly added
accused is deemed to have been
taken in the same manner in which
cognizance was first taken of the
offence against the earlier accused.
It naturally deals with a matter
arising from the course of the
proceeding already initiated. The
scope of the section is wide enough
to include cases instituted on
private complaint.
15. There
could
be
no
doubt that the appellants 1, 2 and 3
were the accused in the case at the
time of passing the impugned order
by the Magistrate and as such
Section 319 CrPC would not cover
them. Could appellants 4 and 5 be
brought under that section? Were
they accused in the case? Precisely
when a person can be called the
accused?
16. Generally speaking, to
accuse means to allege whether the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
person is really guilty of the crime
or
not.
Accusation
according
to Black's Law Dictionary means a
formal charge against a person, to
the effect that he is guilty of a
punishable offence laid before a
court
or
Magistrate
having
jurisdiction to inquire into the
alleged
crime.
In
this
sense
accusation may be said to be
equivalent
of
information
at
common
law
which
is
mere
allegation of prosecuting officer by
whom it is preferred.
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xxxxxxxxxxxxxxxxxxxxxxxxx
28. In the instant case,
Vijiya Bai and Jiya Bai were
discharged by the Magistrate of all
the charges and the three other
appellants were discharged of the
sections other than Section 427
IPC. After the police submitted
charge-sheet
against
them
the
order of discharge, according to Mr
B.D. Sharma, could not be taken to
be one under Section 203 but under
Section 245 which is included in
Chapter XIX and deals with trial of
warrant cases by the Magistrates.
This submission has not been
refuted. That section says:
"245. When accused shall
be discharged.-(1) If, upon taking
all the evidence referred to in
Section
244,
the
Magistrate
considers,
for
reasons
to
be
recorded, that no case against the
accused has been made out which,
if unrebutted, would warrant his
conviction, the Magistrate shall
discharge him.
(2) Nothing in this section
shall be deemed to prevent a
Magistrate from discharging the
accused at any previous stage of
the case if, for reasons to be
recorded by such Magistrate, he
considers
the
charge
to
be
groundless."
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xxxxxxxxxxxxxxxxxxxxxxxxx
30. The question therefore
is whether the necessity of making
a further inquiry as envisaged in
Section 398 could be obviated or
circumvented by taking resort to
Section 319. As has already been
held by this Court, there is need for
caution in resorting to Section 319.
Once a person was an accused in
the case he would be out of reach
of
this
section.
The
word
"discharge" in Section 398 means
discharge of an offence relating to
the charge within the meaning of
Sections 227, 239, 245 and 249.
Refusing to proceed further after
issue of process is discharge. The
discharge has to be in substance
and effect though there is no formal
order. The language of the section
does not indicate that the word
"discharge" should be given a
restricted meaning in the sense of
absolute
discharge
where
the
accused is set at liberty after
examination of the whole case. The
cases of appellants 4 and 5 would
be one of total discharge. But it
could not be said that they were not
some of the accused in the case, or
that cognizance was not taken of
the offences against them. A person
may be accused of several offences
and he may be discharged of some
offences and proceeded against for
trial in respect of other offences.
This was the proposition regarding
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
377
appellants 1, 2 and 3, who were
partially discharged.
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33. The above views have
to yield to what is laid down by this
Court in the decisions above
referred to. The provisions of
Section 319 had to be read in
consonance with the provisions of
Section 398 of the Code. Once a
person is found to have been the
accused in the case he goes out of
the reach of Section 319. Whether
he can be dealt with under any
other provisions of the Code is a
different question. In the case of the
accused who has been discharged
under the relevant provisions of the
Code, the nature of finality to such
order and the resultant protection
of the persons discharged subject to
revision under Section 398 of the
Code may not be lost sight of. This
should
be
so
because
the
complainant's desire for vengeance
has to be tampered (sic tempered)
with though it may be, as Sir James
Stephen says: "The criminal law
stands to the passion of revenge in
much
the
same
relation
as
marriage to the sexual appetite."
(General View of the Criminal Law
of England, p. 99). The APP's
application under Section 216,
insofar as the appellants 1 to 3
were concerned, could be dealt
with under Section 216. Appellants
4 and 5 could be dealt with neither
under Section 216 nor under
Section 319. In that view of the
matter the impugned order of the
Magistrate as well as that of the
High
Court
insofar
as
the
appellants 4 and 5, namely, Vijya
Bai and Jiya Bai are concerned,
have to be set aside which we
hereby do. The appeals are allowed
to that extent."

18. It would be apt to indicate that
the Hon'ble Apex Court held in Sohan Lal
(Supra) after considering Section 216
CrPC observed as under:-

"12. Add to any charge
means the addition of a new
charge. An alteration of a charge
means changing or variation of an
existing charge or making of a
different charge. Under this section
addition to and alteration of a
charge or charges implies one or
more existing charge or charges."

19. In the case of Vibhuti Narayan
Chaubey @ Lala Chaubey and others vs.
State of U.P., 2002 SCC OnLine All 1413,
considered by this Court while passing the
judgment in the case of Dev Narain
(Supra) (relied upon by the learned counsel
for
the
applicant),
this
Court
after
considering Section 216 CrPC and the
judgemnt passed in the case of Sohan Lal
(Supra), concluded as under:-

"1. The applicants are
accused in S.T. No. 74 of 2001
pending in the Court of Additional
Sessions Judge, Court No. 15,
Varanasi. In this case the charges
for offences under Sections 323/34,
307/34, 504, 506, I.P.C. were
framed on 16-7-2001. Thereafter
the statement of PW 1, Rajendra
Prasad
was
recorded.
The
applicants
then
moved
an
application to alter the charge
under Section 307/34, I.P.C. to
324/34 I.P.C. on the basis of his
378 INDIAN LAW REPORTS ALLAHABAD SERIES
statement. The application has
been rejected by the impugned
order dated 6-7-2002. Aggrieved by
it, the present petition has been
filed.
2. Learned counsel for the
applicant has relied on clause (1)
of Section 216, Cr. P.C. of which is
as follows:
"Any Court may alter or
added to any charge at any time
before judgment is pronounced."
3. However, this clause
does not provide for deletion of the
charge and the charge for offence
under Section 307/34, I.P.C. cannot
be deleted. The word "delete" has
intentionally been not used by the
legislature.
4. However,
learned
counsel for the appellants, Sri
Vinod Prasad has argued that this
request is for alteration of the
charge and not for deletion of any
charge.
5. The argument is totally
misleadings and perverse. The
charge
framed
under
Section
307/34, I.P.C. can not be struck off
and in its place charge under
Section 324/34, I.P.C. cannot be
substituted.
The
real
request,
therefore, is to delete the charge
under Sec. 307/34, I.P.C. and to
frame the charge under Section
324/34, I.P.C. The application is
therefore, not for alteration of the
charge.
6. What is alteration of
charge can be explained by one
example. If the charge is framed
with the help of Section 34, I.P.C.
the charge may be altered as
simpliciter. The word alteration has
not been used in the above Section
and therefore, the charge once
framed cannot be deleted. This will
also appear from the perusal of the
provisions of Section 224, Cr. P.C.
which provides for withdrawal of
the
remaining
charges
on
conviction on some of the charges
where the charges are for more
than one heads. Therefore, once the
charge is framed the case will
result, other in acquittal or in
conviction in accordance with the
provisions
of
trials
prescribed
under the Chapters 18, 19 and 20
of the Cr. P.C. The charge can be
withdrawn under Section 224, Cr.
P.C. only after judgment and it
cannot be deleted.
7. Sri
Vinod
Prasad,
learned counsel for the applicant
has also referred to the decision of
the
Apex
Court
in Sohan
Lal v. State of Rajasthan, 1990 SCC
(Cri) 650 : ((1990) 4 SCC 580 :
AIR 1990 SC 2158). This case is
mainly on Section 319, Cr. P.C.
Regarding Section 219, Cr. P.C. the
only observation is that "add to
any charge means the addition of a
new charge. An alteration of a
charge means hanging or variation
of an existing charge or making of
a different charge." This decision is
of no help to the applicants and
does not provide for deletion of
charge.
8. The petition is totally
misconceived. The application was
rightly rejected.
9. The petition is dismissed.
10. Petition dismissed."

20. From a conjoint reading of
paras 1, 2, 3 and 5, of the judgment passed
in the case of Vibhuti Narayan Chaubey @
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
379
Lala Chaubey (Supra), it is evident that,
after taking note of the charged framed for
an offence under Section 307/34 IPC and
prayer of the accused in the application
preferred by him under Section 216 CrPC,
this Court observed that the real/actual
request is to delete the charge under
Section 307/34 IPC and to frame the charge
under Section 324/34 IPC and thereafter,
dismissed the petition filed by the accused.

21. It would be apt at this stage to
indicate that the judgment passed in the
case of Dev Narain (Supra) would not be
applicable in the instant case. It is for the
following reason(s):-

(i) From a bare perusal of
the judgment, it is evident that on
28.07.2015 an application seeking
discharge by the accused Dev
Narain was rejected and thereafter
he approached this Court by
preferring an application under
Section 482 CrPC and this Court,
after considering the facts of the
case, dismissed the said application
with observation that "it is open to
applicant to move an application
for alteration of charge under
Section 216 CrPC before the trial
Court".
(ii)
Pursuant
to
the
aforesaid observation of this Court,
the accused Dev Narain, dever
(brother-in-law) of the deceased,
filed an application under Section
216 CrPC and the same was
rejected
vide
order
dated
23.01.2023, which was challenged
before this Court by means of the
Criminal Revision No. 1026 of
2023.
(iii) Considering the facts
as stated, in brief, hereinbefore, this
Court dismissed the said revision
after observing that essence of the
prayer sought in the application
under Section 216 CrPC is for
discharge.
(iv) The relevant portion of
the judgment passed in the case of
Dev Narain (Supra) reads as
under:-
"Accused
Dev
Narain, who is brother-inlaw of the deceased moved
an
application
for
discharge
before
trial
court, which was rejected
by order dated 28.7.2017
and case was fixed for
prosecution evidence. The
accused Dev Narain, who
filed
a
petition
under
Section 482 Cr.P.C. against
rejection of his discharge
application
before
this
Court, which was dismissed
by
this
Court
with
observation that "it is open
to the applicant to move an
application for alteration
of charge under Section
216 Cr.P.C. before trial
court". Pursuant to the
observation of this Court,
the
sole
accused
Dev
Narain, who is dewar of
deceased
has
filed
an
application under Section
216 Cr.P.C., wherein he has
stated that he has moved
this application pursuant to
the observation of Hon'ble
High Court vide order
dated 9.6.2017. The factum
of death of husband of
deceased Kamal Kishor @
Satyanarain and recovery
380 INDIAN LAW REPORTS ALLAHABAD SERIES
of his dead body from
railway track was entered
in GD Entry No.21, time
15:10 hours on 26.5.2016,
police station Manikpur.
There
is
no
specific
allegation of demand of
dowry or subjecting the
deceased to matrimonial
cruelty is made by any
witness examined by the
Investigating
Officer
against the applicant. On
the basis evidence collected
during investigation. This
appears
that
deceased
Rashmi and her husband
were residing in separate
house and he was working
in railway and they used to
pickup quarrel on some
issue. The key of house
where
dead
body
of
deceased was lying was
recovered from the pocket
of cloths worn by the
Kamal Kishore on recovery
of his dead body. The
deceased and her husband
were residing separately
from the revisionist and
other family members and
they were not concerned
with daily affairs of each
other. The revisionist could
not be beneficiary of any
demand of dowry allegedly
made by husband of the
deceased from deceased
and her family members.
There is no evidence that
she
was
subjected
to
matrimonial cruelty soon
or before her death. The
ingredients
of
charges
under Sections 498-A. 304B and 323 IPC and Section
3/4 DP Act are not made
out against the applicant.
Therefore, the said charges
are liable to be quashed
and the applicant may be
discharged
from
the
charges. This application
has been dismissed by the
court below. Learned court
below while rejecting the
application has observed
that
on
the
basis
of
evidence on record, no
error is found in charges
made against the applicant
on
6.9.2016,
therefore,
there is no question of
alteration of charge. The
evidence of PW-1- the
informant
has
been
recorded during trial in
which he has supported his
FIR version and he has
stated in cross-examination
also that in matter of
killing of his sister, the
complicity of her husband
(late) and brothers-in-law
Sri Narain, Dev Narain
and
other
relatives
is
involved and these persons
killed her.
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11. From perusal of
prayer made in application
under Section 216 Cr.P.C.,
it appears in essence that
this
is
a
prayer
for
discharge as the revisionist
has stated that he may be
discharged from charged
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
381
penal sections and the
charges levelled against
him be quashed. The trial
court in exercise of its
powers under Section 216
Cr.P.C. cannot delete the
charges framed by it for the
said
offences
as
the
criminal procedure code
does
not
confers
such
powers on the court. The
trial court can only alter to
a charge or to add to a
charge, which has already
framed.
The
discharge
application moved by the
revisionist has already been
dismissed and said order
has attained finality.
12. This Court in
Application
U/S
482
No.2556 of 2023 (Nanhey
Bhaiya @ Nanhan Singh
And 2 others vs State Of
U.P. Thru. Prin. Secy.) on
31.3.2023 held that the
power of the Court under
Section 216 Cr.P.C. to alter
or add any charge at any
time before the judgment is
pronounced is exclusively
confined to Court and no
party has any vested right
to seek any addition or
alteration of charge.
13. Recently, the
Hon'ble Supreme Court in
P. Kartikalakshmi Versus
Sri Ganesh and another
reported in (2017) 3 SCC
347, in paragraphs No.6, 7
and 8 has held as under:-
"6. Having heard
the learned counsel for the
respective parties, we find
force in the submission of
the learned Senior Counsel
for Respondent 1. Section
216 CrPC empowers the
Court to alter or add any
charge at any time before
the
judgment
is
pronounced. It is now well
settled
that
the
power
vested in the Court is
exclusive to the Court and
there is no right in any
party to seek for such
addition or alteration by
filing any application as a
matter of right. It may be
that
if
there
was
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
382 INDIAN LAW REPORTS ALLAHABAD SERIES
be open for the parties to
work out their remedies in
accordance with law.
14. This Court in
the case of Vibhuti Narayan
Chaubey Alias .. vs State Of
U.P, 2003 CrLJ 196 held
that Section 216 of the code
did not provide for deletion
of a charge and that the
word
"delete"
had
intentionally not being used
by the legislature. I am in
agreement
with
this
conclusion. The petitioner
is seeking the deletion of a
charge
of
conspiracy
altogether
that
is
not
permissible under Section
216 of the Code. The
charge once framed must
lead to either acquittal or
conviction
at
the
conclusion of trial. Section
216 of the Code does not
permit the deletion of the
same. Subsequently, Delhi
High Court in the case of
Verghese
Stephen
vs
Central
Bureau
Of
Investigation, 2007 Cr.L.J.
4080, placed reliance on
aforesaid judgement of this
Court in the case of Vibhuti
Narayan Chaubey (supra).

15. Section 222 (2)
of the Cr.P.C. provides that
when a person is charged
with an offence and facts
are proved which reduce it
to a minor offence, he may
be convicted of the minor
offence, although he is not
charged with it."
22. In the case of Anant Prakash
Sinha v. State of Haryana, (2016) 6 SCC
105 the Hon'ble Apex Court observed as
under:-

"8. The controversy as
raised rests on two aspects. The
first aspect that has emanated for
consideration is whether without
evidence being adduced another
charge could be added. In this
context, we may usefully refer to
Section 216 CrPC which reads as
follows:
"216. Court may alter
charge.-(1) Any court may alter
or add to any charge at any time
before judgment is pronounced.
(2) Every such alteration or
addition
shall
be
read
and
explained to the accused.
(3) If the alteration or
addition to a charge is such that
proceeding immediately with the
trial is not likely, in the opinion of
the court, to prejudice the accused
in his defence or the prosecutor in
the conduct of the case, the court
may, in its discretion, after such
alteration or addition has been
made, proceed with the trial as if
the altered or added charge had
been the original charge.
(4) If the alteration or
addition is such that proceeding
immediately with the trial is likely,
in the opinion of the court, to
prejudice the accused or the
prosecutor as aforesaid, the court
may either direct a new trial or
adjourn the trial for such period as
may be necessary.
(5) If the offence stated in
the altered or added charge is one
for the prosecution of which
10 All. Suresh Kumar Shukla @ Suresh Dutt Shukla Vs. State of U.P. & Anr.
383
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."
9. The aforesaid provision
has been interpreted in Hasanbhai
Valibhai
Qureshi [Hasanbhai
Valibhai
Qureshi v. State
of
Gujarat, (2004) 5 SCC 347 : 2004
SCC (Cri) 1603 : (2004) 2 RCR
(Cri) 463] wherein the Court has
observed: (SCC p. 350, para 8)
"8. 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.