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

- **Citation:** (2023) 7 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Application U/S 482. No. 4319 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-v-state-of-u-p-anr-50381
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 216, 227 & 482 - Indian
Penal Code, 1860 - Sections 307, 452,
572 INDIAN LAW REPORTS ALLAHABAD SERIES
504 & 506 - Application - for assailing the
order by which the trial court altered the
charge u/s 307 IPC against the applicant -
offence of attempt to murder - criminal
intimidation - FIR - investigation - charge
sheet - NBW - arrest - released on bial -
application u/s 2016 Cr.P.C - court finds that,
no fault in case such an application has been
entertained in the present facts of the case
wherein from the St.ment of witnesses having
rifle and country made pistol was proved at
place of incident was ample material to
entertain the application to alter charge -
held, - court feels that the learned Magistrate
could have done it suo moto but the
application was only a way to bring to the
notice of the court concern about the defect
in framing of the charge - court does not find
any
error
in
the
impugned
order
-
accordingly, the Application is dismissed.(Para
- 33, 34)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

## Text

7 All. Sushil Vs. State of U.P. & Anr.
571
directors. Investigation revealed that the
applicant rose exponentially in wealth ever
since he became a minister. The total
income of the applicant during the period
he was a Minister, was ₹ 72.38 lakhs
whereas the assets standing in the name of
the applicant, his family members and
benami holders and of some companies in
which the applicant's sons are directors, is
₹ 35 crores approximately. The applicant
has committed the offence of money
laundering by amassing unexplained and
unaccounted properties in the name of his
family members and related companies.

29. The aforesaid allegations clearly
make out a case for trial of the applicant for
commission of offence under Section 3 of the
PMLA as upon consideration of the record of
the case and the documents submitted
therewith, it does not appear that there is not
sufficient ground for proceeding against the
applicant. There appears to be no illegality in
the order passed by the Trial Court rejecting
the application for discharge filed by the
applicant and in the order framing charges
against him.

30. The plea regarding closure or
withdrawal of some earlier complaints filed
before the Hon'ble Lokayukta and the F.I.R.
having been lodged in furtherance of an order
passed by the Hon'ble Lokayukta on a
subsequent complaint allegedly filed on the
basis of similar set of facts would also not
affect the legality of the orders passed by the
trial Court for more than one reason. Firstly,
there is no averment that the earlier
complaints had been closed after a fullfledged enquiry and summary closure of
complaint or withdrawal thereof without any
finding of innocence would be of no
consequence. Secondly, the principle of res
judicata does not apply to the proceedings
before the Hon'ble Lokayukta. Thirdly, it
would also not amount to double jeopardy,
which principle is contained in Section 300 of
Cr.P.C. For attracting the principle of double
jeopardy, the person must have been tried by
a 'Court of competent jurisdiction' for an
offence and convicted or acquitted of such
offence, whereas the Hon'ble Lokayukta is
not a 'Court' within the meaning of the
expression used in Section 300 of Cr.P.C.

31. The E.D. has filed the complaint after
conducting investigation, when the evidence
collected prima facie established commission of
offence under PMLA and there appears to be
no illegality in the order passed by the trial
Court rejecting the application for discharge of
the applicant and the order framing charges
against the applicant.

32. The application lacks merit and the
same is, accordingly, rejected. However,
there will be no order as to costs.
----------
(2023) 7 ILRA 571
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482. No. 4319 of 2023

Sushil ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek Pandey

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 216, 227 & 482 - Indian
Penal Code, 1860 - Sections 307, 452,
572 INDIAN LAW REPORTS ALLAHABAD SERIES
504 & 506 - Application - for assailing the
order by which the trial court altered the
charge u/s 307 IPC against the applicant -
offence of attempt to murder - criminal
intimidation - FIR - investigation - charge
sheet - NBW - arrest - released on bial -
application u/s 2016 Cr.P.C - court finds that,
no fault in case such an application has been
entertained in the present facts of the case
wherein from the St.ment of witnesses having
rifle and country made pistol was proved at
place of incident was ample material to
entertain the application to alter charge -
held, - court feels that the learned Magistrate
could have done it suo moto but the
application was only a way to bring to the
notice of the court concern about the defect
in framing of the charge - court does not find
any
error
in
the
impugned
order
-
accordingly, the Application is dismissed.(Para
- 33, 34)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Asian Resurfacing of Road Agency Pvt. Ltd. &
anr.Vs Central Bureau of Investigation (2018)
16 SCC 299),

2. Jasvinder Saini & ors..Vs St. (Govt. of NCT of
Delhi) (2013 0 Supreme (SC) 571),

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

4. St. Vs K.P. Shankar & ors..(2015 0 Supreme
(Mad) 2658)

5. Nanhey Bhaiya @ Nanhan Singh & ors.Vs St.
of U.P. (2023 LawSuit (All) 451)

6. P. Kartikalakshmi Vs Sri Ganesh & anr.(2017
vol. 3 SCC 347)

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

8. Central Bureau of Investigation Vs Karimullah
Osan Khan ((2014) 11 SCC 538)

9. Harihar Chakravarty Vs St. of W. B. (AIR
1954 SC 266).
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Abhishek Pandey,
learned counsel for the applicant and Mr.
Amit Singh Chauhan, learned A.G.A. for
the State.

2. The present case has been filed
assailing the order dated 13.01.2023 passed
by Additional District and Sessions Judge,
Deoband, Saharanpur in Session Trial
No.56 of 2021 (State Vs. Sunil and others),
arising out of Case Crime No.210 of 2018,
under Sections 307, 452, 504, 506 I.P.C.,
Police
Station-Deoband,
District
Saharanpur, by which the Court concerned
altered the charge u/s 307 I.P.C. against the
applicant,
pending
before
Additional
District and Sessions Judge, Deoband,
Saharanpur.

3. Brief facts of the case are; an FIR
was lodged by opposite party no.2 against
three
accused
persons
including
the
applicant on 04.03.2018 at 23:46 hours,
under Sections 307, 504, 506 I.P.C., which
came to be registered as Case Crime
No.0210 of 2018.

4. As per allegations in the FIR, the
informant along with his cousin namely
Amit purchased a land from Sudhir Tiwari.
A civil suit with respect to the same land is
pending in the Court of Civil Judge,
Deoband. The family members of Sudhir
Tiwari were annoyed by purchase of land
by the informant and his cousin, therefore,
they were inimical to the informant and his
family members. It has further been alleged
that on 03.03.2018 at about 11 PM when
the informant was returning from Rohana
Sugar Mill to his residence on his tractor, a
black motorcycle, in which three persons
were sitting, having rifle and countrymade
7 All. Sushil Vs. State of U.P. & Anr.
573
pistol
in
their
hands,
overtook
the
informant's
tractor
near
the
railway
crossing and fired upon him with intention
to kill him. The informant saved his life by
jumping from the tractor. The aforesaid
incident was witnessed by Amit and
Mahipal, who were coming from behind.
Seeing them, the accused persons ranaway
towards the village after opening fire. The
informant managed to reach home and
narrated the entire story to his family
members. At about 12 O'clock, Sushil,
Sunil and Shubham again reached at the
residence of the informant and with
intention to kill, opened fire with the
countrymade pistol and rifle, warning him
and threatening to kill him. The second
incident was witnessed by Brijesh, Munesh
and few others. During investigation,
statement of opposite party no.2 has been
recorded, who has supported the version of
the FIR. Statements of witnesses Brijesh
and Munesh have also been recorded in
which Munesh has stated about presence of
Sushil and Shubham, having rifle and
countrymade pistol in their hands at the
place of incident.

5. The statements of other witnesses
namely, Satish, Sat Kumar, Manoj Kumar,
Subhash, Mahipal and Kapil were also
recorded. The aforesaid persons have stated
that due to some land dispute between the
parties, they are inimical to each other and,
therefore, for the purpose of pressurising
the applicant, the aforesaid F.I.R. has been
lodged.

6.

During
investigation,
the
Investigating Officer found the implication
of Shubham incorrect, therefore, he was
exonerated by the Investigating Officer.

7. On the basis of statements of
interested witnesses, on 26.07.2018, the
Investigating Officer filed charge sheet
against the applicant-Sushil, under Sections
307, 452, 504, 506 I.P.C. whereas under
Sections 452, 504, 506 IPC against the
other accused Sunil.

8. The Additional Chief Judicial
Magistrate, Deoband, Saharanpur took
cognizance of the aforesaid charge sheet by
order dated 23.08.2018. The charge sheet
was challenged by the applicant and coaccused Sunil by way of filing application
u/s 482 No.11872 of 2019 and the Hon'ble
Court vide order dated 30.03.2019 has
passed the following order:

"1. Heard learned counsel for the
applicants and learned A.G.A. for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the
charge-sheet no. 544 of 2018 dated
26.07.2018 as well as cognizance order
dated 23.08.2018 and entire proceedings of
Case No. 2570 of 2018 (State Vs. Sunil and
another), under Sections- 307, 504, 506 and
452 I.P.C., Police Station- Deoband,
District- Saharanpur, arising out of Case
Crime No. 0210 of 2018, under Sections-
307, 504 and 506 I.P.C., Police Station-
Deoband, District- Saharanpur, pending
before the court of learned Additional
Chief
Judicial
Magistrate,
Deoband,
District Saharanpur.

3.
Learned
counsel
for
the
applicants submits that wholly concocted
and false story is set up against the
applicants on account of pending civil
dispute between the parties. The allegation
in the FIR describes the incident of 11:00
AM on public road whereas in the
statement recorded during investigation,
there is gross inconsistency as to the time
and place and occurrence. At present, it
574 INDIAN LAW REPORTS ALLAHABAD SERIES
also does not appear that any empties were
recovered to support the allegation of the
use of firearm in the incident.

4. Matter requires consideration.

5. Notice on behalf of opposite
party no. 1 has been accepted by learned
A.G.A.

6. Issue notice to opposite party
no.2 returnable at an early date.

7. Opposite parties may file their
counter
affidavits
within
six
weeks.
Rejoinder affidavit may be filed within two
weeks thereafter.

8. List thereafter.

9. Till the next date of listing,
further proceedings of the aforesaid case
shall remain stayed against the applicants."

9. During pendency of the aforesaid
petition, in view of the direction of Hon'ble
Apex Court passed in case of Asian
Resurfacing of Road Agency Private
Limited and Anr. vs. Central Bureau of
Investigation1,
the
trial
Court
has
proceeded against the applicants and coaccused persons and non bailable warrants
have been issued. The applicant was
arrested and has been released on bail on
25.01.2021.

10. In the meantime, the complainant
moved an application before the trial Court
under Section 216 Cr.P.C. requesting to
alter the charge of Section 307 IPC against
the applicant. Relying upon the statements
of few witnesses, the trial Court vide order
dated
13.01.2023
has
allowed
the
application framing charge under Section
307 IPC against the applicant and coaccused, hence, the present application has
been filed.

11. Learned counsel for the applicant
submits that the earlier petition has become
infructuous in view of the order passed by
Court below dated 13.01.2023, therefore,
by order of High Court dated 09.05.2023,
the same was dismissed as not pressed.

12. Learned counsel for the applicant
has challenged the order dated 13.01.2023
on following grounds:

(i) that neither the prosecution
nor the de-facto complainant or anyone
interested in the criminal case is entitled to
file application under Section 216 Cr.P.C.

(ii) that the trial Court cannot
alter the charge only on the basis of
evidence adduced at the time of trial and
not on the basis of material that was
already on record as collected by the
Investigating Officer.

13. Learned counsel for the applicant
relying upon the judgement of Hon'ble
Apex Court passed in case of Jasvinder
Saini & Others Vs. State (Govt. of NCT of
Delhi)2, states that the additional evidence
at the time of trial was essential for framing
of additional charge or place charge already
framed.
Relevant
paragraphs
of
the
aforesaid judgement are being reproduced
herein below:

"11. A plain reading of the above
would show that 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. Subsections (2) to (5) of Section 216 deal with
the procedure to be followed once the
Court decides to alter or add any charge.
7 All. Sushil Vs. State of U.P. & Anr.
575
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."

14. Placing reliance upon judgement
of
Hon'ble
Apex
Court
passed
in
Hasanbhai Valibhai Qureshi Vs. State of
Gujarat3, he submits that while dealing
with the scope of Section 216 Cr.P.C. the
Hon'ble Apex Court has held that there is
scope of alteration of 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 judgement is pronounced.
Whenever such alteration or addition is
made, the same is to be read out and
informed to the accused. He has pressed
upon paragraph 10 of the aforesaid
judgement, which is extracted below:-

"10. Therefore, 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."

15. Placing reliance upon judgement
of High Court of Judicature at Madras
passed in State Vs. K.P. Shankar and
Ors.4, he submits that on the basis of
statement recorded under Section 161
Cr.P.C. when no evidence has been
adduced for the offence in question at the
time of trial, addition or alteration of
charge is not justified. He has also
emphasised that Section 216 Cr.P.C. does
not contemplate that any application has to
be filed by the prosecution or by any
witness including the de-facto complainant.

16. In support of his submission he
has pressed upon following paragraphs:

"7..........Merely on the basis of
the statement of witnesses, the offence
under Section 302 of IPC need not be
included. In the absence of proof of corpus
delicti, it is not proper on the part of the
prosecution to file the petition under
Section 216 of Cr.P.C. The trial Court is
therefore right in dismissing such petition
filed by the prosecution. There is no
evidence available to include the charge
under Section 302 of IPC.

The word "evidence" can mean
and include the statement of the witnesses
adduced before the Magistrate concerned
during the course of trial and the evidence
collected by the Police Officer under
Section 161 of Cr.P.C. will not be
construed as "evidence" for the purpose of
filing the petition under Section 216 of
Cr.P.C. The petition under Section 216 of
Cr.P.C. filed by the prosecution is therefore
pre mature. Even if it is shown that the
respondents/accused are guilty of the
offence of murder, it is only for the Trial
576 INDIAN LAW REPORTS ALLAHABAD SERIES
Court to decide the same on the basis of the
evidence made available against them
during the course of trial. The application
filed under Section 216 of Cr.P.C. by the
prosecution is therefore not maintainable
and it was rightly rejected by the trial
Court. In this context, the learned counsel
for the respondents relied on the decision of
this Court in the case of (H.A. Hurul
Firdhouse, represented by her power agent
H.A. Abdul Jabbar vs. State, represented by
Inspector of Police, W-22, All Women
Police Station, Mylapore, Chennai - 2 and
others) 2010 (3) Madras Weekly Notes
(Crl.) 368 for the proposition that neither
the prosecution nor the petitioner/accused
has any right to seek for inclusion or
deletion of a charge and it is for the trial
Court, in its discretion, consider such
inclusion of a charge. It was also held in
the above said decision that as against an
order passed by the trial Court, dismissing
an application under Section 216 of Cr.P.C.
a
Criminal
Revision
Case
is
not
maintainable."

"8. The learned counsel for the
respondents/accused also relied on the
decision rendered by this Court in the case
of (Chellapandi vs. Dy. Superintendent of
Police, C.B.C.I.D., Madurai District and
others) (2012) 1 MLJ Criminal 246
wherein this Court has held that the power
under Section 216 of Cr.P.C. to alter or
amend the charges is vested with the Court
on the Court being satisfied, based on the
documents produced, that the charges
framed has to be amended or altered. In the
present case, the prosecution has filed the
petition under Section 216 of Cr.P.C. to
include the charge under Section 302 of
IPC merely on the basis of the evidence
given by the witnesses before the police
officer to the effect that the victim was
taken towards the sea with a view to
commit the murder. In fact, in the present
case, there is a long delay in giving the
complaint itself for about five years and
therefore also, the petition filed by the
prosecution is not maintainable. In such
circumstances, the learned counsel for the
respondents prayed this Court to dismiss
the Criminal Revision Case."

"12. The only question arise for
consideration in this Criminal Revision
Case is whether the prosecution has a right
to file an application under Section 216 of
Cr.P.C. to include the charge under Section
302 of IPC or whether such an application
is maintainable."

"17. It is evident from Section
216 Cr.P.C. that alteration or amendment or
addition of a charge can be done only by
the Court and the trial Court alone got such
power. This position is reiterated in the
decision rendered by this Court in the case
of
(Krishnammal
Vs.
The
Revenue
Divisional Officer and others) reported in
2008 Criminal Law Journal 2845 wherein
in Para Nos.9 to 11, it was held as follows:-

9. From the conjoint reading of
the provisions of the said Sections, it is
pellucid that only the Court is having
power to frame charge or alter it or add
new charges at any time before judgment is
pronounced. Neither the prosecution nor
the person interested has right to file
petition by invoking either of the said
Sections so as to delete the existing charges
or add new charges. In short, either the
prosecution or the person interested has no
right to ask the Court either to alter the
existing charges or to add new charges."

"18(8). Section 216, Cr.P.C. does
not contemplate any application being filed
either by the prosecution or by any witness
7 All. Sushil Vs. State of U.P. & Anr.
577
including the de facto complainant. It
simply states the power of the Court to alter
the charge or add any charge to the charge
already framed. The stage at which such
alteration or addition to charge can be made
is also indicated thereon. Such an alteration
or addition can be made at any time before
judgment is pronounced. The Section also
provides for the follow up action to be
taken in the case the alteration or addition
to the charges is made after considerable
progress in the trial of the case.

18(9). In the light of the said
provision we have to consider the order
passed by the learned Trial Magistrate. A
reading of the order of the learned Trial
Magistrate will show that, on a proper
understanding of the context of the said
provision, the learned Trial Magistrate has
passed the impugned order. The learned
Trial Magistrate has expressed a clear
opinion
that
the petition
itself
was
premature one as none of the witnesses for
prosecution was cross examined and five
more witnesses were to be examined and
that the question of framing an additional
charge could be considered at a later stage
in the light of the evidence to be adduced
during the course of the trial. The said
opinion is in tune with the intention of the
legislature in enacting the said provision.
Therefore, as rightly contended by the
learned Senior counsel for the Respondent,
there is no defect infirmity in the order
passed by the Trial Court warranting
interference by this Court."

17. Learned counsel for the applicant has
placed reliance upon the judgement of High
Court of Judicature at Allahabad (Lucknow
Bench) passed in Nanhey Bhaiya @ Nanhan
Singh And 2 Others Vs. State of U.P.5,
wherein it has been stated 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.

18. Lastly, he has relied upon judgement
of Hon'ble Apex Court passed in P.
Kartikalakshmi
vs.
Sri
Ganesh
and
another6,
while
submitting
that
the
application moved by the informant or
prosecution is not maintainable and has
emphasised on Paragraphs 6, 7 and 8, which
are 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 be open for the parties to work out their
remedies in accordance with law.

7. We were taken through Section
221 and 222 CrPC in this context. In the
578 INDIAN LAW REPORTS ALLAHABAD SERIES
light of the facts involved in this case, we
are only concerned with Section 216 CrPC.
We, therefore, do not propose to examine
the implications of the other provisions to
the case on hand. We wish to confine
ourselves to the invocation of Section 216
and rest with that. In the light of our
conclusion that the power of invocation of
Section 216 CrPC is exclusively confined
with the Court as an enabling provision for
the purpose of alteration or addition of any
charge at any time before pronouncement
of the judgment, we make it clear that no
party, neither de facto complainant nor the
accused or for that matter the prosecution
has any vested right to seek any addition or
alteration of charge, because it is not
provided under Section 216 CrPC. If such a
course to be adopted by the parties is
allowed,
then
it
will
be
well-nigh
impossible for the criminal court to
conclude its proceedings and the concept of
speedy trial will get jeopardised.

8. In such circumstances, when
the application preferred by the appellant
itself before the trial court was not
maintainable, it was not incumbent upon
the trial court to pass an order under
Section 216 CrPC. Therefore, there was no
question of the said order being revisable
under Section 397 CrPC. The whole
proceeding, initiated at the instance of the
appellant, was not maintainable. Inasmuch
as the legal issue had to be necessarily set
right, we are obliged to clarify the law as is
available under Section 216 CrPC. To that
extent, having clarified the legal position,
we make it clear that the whole proceedings
initiated at the instance of the appellant was
thoroughly misconceived and vitiated in
law and ought not to have been entertained
by the trial court. As rightly pointed out by
the learned Senior Counsel for Respondent
1, such a course adopted by the appellant
and entertained by the court below has
unnecessarily
provided
scope
for
protraction of the proceedings which ought
not to have been allowed by the court
below."

19. As the power to alter or add any
charge is exclusive to the Court, therefore,
the application moved by informant is not
maintainable, as such course is adopted for
protraction of proceeding which ought not
to have been allowed by the Court below,
thus, the order dated 13.01.2023 is liable to
be quashed.

20. Learned A.G.A. on the other hand
submits that there is no prohibition under
Section 216 Cr.P.C. to alter or add a charge
prior to recording of evidence. If the Court
is moved for the said purpose and it is
satisfied, the charge framed by it deserves
to be altered and additional charge is
required to be added. He further contends
that when the Magistrate has jurisdiction to
rectify the mistake by adding or altering
charge, he can hear the counsel for the
parties and do it suo moto and any
application either by the public prosecutor
or by the informant is only to bring the said
facts to his notice and in any case that
would not invalidate the order.

21. He submits that the duty of the
Court while adding or altering charge has
been summarised in the judgement of
Anant Prakash Sinha Alias Anant Sinha
Vs. State of Haryana And Another7,
wherein the materials which have to be
considered, the adequacy of material on
record, and stages up to which such
addition or alteration of charge can be done
as also with the powers of the Court to
entertain an application moved by the
informant, complainant or any witness, has
been elaborated. In view of above, there is
7 All. Sushil Vs. State of U.P. & Anr.
579
no illegality or infirmity in the order,
therefore, relief as prayed, cannot be
granted.

22. Before coming to the merits of the
case, it would be appropriate to extract
Section 216 Cr.P.C., which is 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 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."

23. All that the Court meant to say
was that in a case where a charge alleging
dowry death is framed, a charge under
Section 302 IPC can also be framed if the
evidence otherwise permits.

24. Thus, in the case of Jasvinder
Saini (Supra), the Court opined that the
appearances on evidence at the trial Court
was not essential for framing of additional
charge or altering the charge already
framed, though it may be one of the
grounds to do so.

25. It would be appropriate to extract
paragraph 11 of the aforesaid judgement:

"11. A plain reading of the above
would show that 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. Subsections (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."

26. While interpreting powers of
Court under Section 216 Cr.P.C. to alter or
580 INDIAN LAW REPORTS ALLAHABAD SERIES
add any charge, the Hon'ble Apex Court in
case of Central Bureau of Investigation
Vs. Karimullah Osan Khan8, has tried to
explain the expression.

"at any time", "before judgement
is pronounced", and has also dealt with the
material/basis on which charge(s) may be
added, altered after conclusion of the trial.

27. Relevant paragraphs of the
aforesaid judgement are reproduced herein
below:-

"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 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."

28. The Apex Court in a full bench
decision
in
the
case
of
Harihar
Chakravarty Vs. State of West Bengal9,
has gone to the extent to hold that the
direction to alter the charge so as to include
an offence for which the appellant was not
originally charged, could only be done if
the trial Court itself had taken action under
Section 227 Cr.P.C. before it pronounced
judgement. It could only have done so if
there were materials before it either in the
complaint or in the evidence to justify such
action.

29. Thus, it can be interpreted in such
a manner that the concerned Court has the
power to alter or modify any charge prior
to pronouncement of the judgement, in
case, there is material before it. Irrespective
of the fact as to whether it is the material as
collected by the Investigating Officer,
which has been placed before the trial
Court after submission of the charge sheet
or when the Court concerned is proceeded
with the trial, thus collecting evidence at
the time of trial.

30. Thus the Court in the aforesaid
case opined that the trial Court could issue
a direction for alteration of the charge if
there were materials before it in the
complaint or any evidence to justify such
action.
The
sum
and
substance
as
understood is that if there are allegations in
7 All. Sushil Vs. State of U.P. & Anr.
581
the complaint, petition or for that matter in
FIR or accompanying material, the Court
can alter the charge.

31. This Court is of the opinion that
the powers under Section 216 Cr.P.C.
regarding alteration or addition of charge is
for an offence made out by the evidence
recorded during course of trial before the
Court, which does not necessary mean that
the alteration can be done only in case
where evidence is adduced. Section 216
Cr.P.C., as is evincible does not lay down
that the Court cannot alter the charge solely
because it has framed the charge. The
Court finds that the question of any such
addition or alteration generally arises either
because the charge already framed is
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. In other words, 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 complaint
or the FIR or accompanying documents or
material brought on record, during the
course of trial and can also be done at any
time
before
pronouncement
of
the
judgement. Thus, as held in case of Anant
Prakash Sinha @ Anant Sinha (Supra),
charge can be framed on the basis of
evidence on record and it is not necessary
to adduce new evidence for altering or
modifying the charge.

32. It would be appropriate to quote
paragraph 18, which is as follows:

"18.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."

33. As regards the submission that the
learned
Magistrate
could
not
have
entertained the application preferred by the
informant as the same is not maintainable
in the view of the provisions of Section 216
Cr.P.C. This Court feels that the learned
Magistrate could have done it suo moto but
the application was only a way to bring to
the notice of the Court concerned about the
defect in framing of the charge, therefore,
the Court finds no fault in case such an
application has been entertained in the
present facts of the case wherein from
statements of witnesses, presence of Sushil
and Shubham having rifle and country
made pistol in their hands, was proved at
the place of incident, thus, there was ample
material to entertain the application as
moved by the informant/complainant to
alter the charge of Section 307 IPC against
the applicant Sushil.

34. In view of the aforesaid
discussion, this Court does not find any
582 INDIAN LAW REPORTS ALLAHABAD SERIES
error in the order impugned, accordingly
the application u/s 482 is dismissed.

35. The Court below is directed to
proceed in accordance with law.
----------
(2023) 7 ILRA 582
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482. No. 11542 of 2023

Kunal Chawala ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dileep Kumar Pandey, Sri Gopal S.
Chaturvedi

Counsel for the Opposite Parties:
G.A., Sri Shashi Kant Pandey

Criminal Law - Criminal Procedure Code,
1973 - Sections 173(2) & 482 - Indian
Penal Code, 1860 - Sections 420 & 120-B -
UP Excise Act, 1910 - Sections 60, 63 &
70: - Application - for quashing the chargesheet and summoning order as well as entire
proceeding - recovery - arrest - investigation -
FIR - punishment of criminal conspiracy -
charge-sheet - summoning order - plea taken
that, company has not been made as an
accused - court finds that, illegal liquor was
being recovered which unloaded from the truck
and being stocked in his godown and same has
not come through legal channel - in the present
petition also the ownership of godown and the
recovery is not challenged - held, the argument
of the applicant that the godown is of the
company, the same is to be taken up in the trial
at the appropriate stage to show as to who is
the owner of the godown and whose material is
being stocked therein - the proposition of law
with regards to maintainability of a petition u/s
482 Cr.P.C. even at the stage of recording of
evidence in trial is not dispute at all but the
decision of the same would be in the facts and
circumstances
of
each
and
every
case
independently - therefore, proceeding on the
said ground itself cannot be quashed -
accordingly, Application is dismissed.
(Para - 24, 25, 26)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Dayle De Souza Vs Government of India
through Deputy Chief Labour Commissioner &
anr.: AIR 2021 SC 5626.

2. Shueb Mahmood Kidwai @ Bobby Vs St. of
U.P.: (2021) (0) Supreme (All) 122,

3. Surinder Kumar Khanna Vs Intelligence
Officer Directorate of Revenue Intelligence:
(2018) 8 SCC 271,

4. Ratilal Bhanji Mithani Vs St. of Mah. & ors..:
(1979) 2 SCC 179,

5. R.P. Kapur Vs St. of Pun.: AIR 1960 SC 866;

6. St. of Har. & ors..Vs Bhajan Lal & ors..: 1992
Supp (1) SCC 335;

7. St. of Bihar Vs P. P. Sharma: 1992 Supp (1)
SCC 222;

8. Trisuns Chemical Industry Vs Rajesh Agarwal
& ors..: (1999) 8 SCC 686;

9. M. Krishnan Vs Vijay Singh & anr. : (2001) 8
SCC 645;

10. Zandu Pharmaceuticals Works Ltd. Vs
Mohammd Shariful Haque: (2005) 1 SCC 122;

11. M. N. Ojha Vs Alok Kumar Srivastava:
(2009) 9 SCC 682;

12. Joseph Salvaraj A. Vs St. of Guj. & ors..:
(2011) 7 SCC 59;

13. Arun Bhandari Vs St. of U. P. & ors..: (2013)
2 SCC 801;