# Yograj Singh v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Application U/S 482. No. 12560 of 2023
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yograj-singh-v-state-of-u-p-anr-50165
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power , Section 216 - Court may alter
charge , Section 319 - Power to proceed
against other persons appearing to be
guilty of offence , Section 212 - Particulars
as to time, place and person , Indian Penal
Code, 1860 - Sections 302 - murder - if the
alteration or addition to a charge is such
that no prejudice is caused to either the
parties, court may, in its discretion,
proceed with the trial by amending the
said technical defects.(Para - 17)

(B) Criminal Law - Prejudice is shown
based on the facts of the case - In judging
a question of prejudice, as of guilt - courts
must act with a broad vision and look to
5 All. Yograj Singh Vs. State of U.P. & Anr.
1247
the substance and not to the technicalities
- their main concern should be to see
whether the accused had a fair trial -
whether he knew what he was being tried
for - whether the main facts sought to be
established against him were explained to
him fairly and clearly - and whether he
was given a full and fair chance to defend
himself.(Para -15)

Applicant's application for amending charge to
'place of occurrence' - rejected under Section
216 Cr.P.C. - prosecution witnesses examined -
regarding place of incident - adding place of
incident in the said charge - same does not
cause
any
prejudice
to
either
of
the
parties.(Para - 2,17)

HELD:- Direction to court below to amend the
charge by incorporating the 'place of incident' in
the original charge as per provision of Section
216(3) Cr.P.C. without recourse to further
evidence . Proceed with trial expeditiously;
following Apex Court's time frame.(Para - 18)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:

## Text

1246 INDIAN LAW REPORTS ALLAHABAD SERIES

27. It also transpires from the
impugned order that the trial court found
that there is prima-facie case against the
present applicant, whereas, as per the law
laid down by the Apex Court, more than
prima-facie, case or much stronger cases,
is
required
while
summoning
such
accused thereby invoking the jurisdiction
under section 319 of Cr.P.C. The power
given to the court under section 319 of
Cr.P.C.is
a
discretionary
and
extraordinary and therefore, the same
should be exercised sparingly and further
it is not to be exercised in supine and
cavalier manner. The strong and cogent
evidence is warranted for test of degree
of satisfaction.

28. This court is also not unmindful to
the Judgment and ratio rendered in the case
of Brijendra Singh and Others Vs. State of
Rajasthan(Supra), which clearly holds that
much
stronger
evidence
than
mere
possibility of complicity is required in the
cases, where the trial court is invoking the
jurisdiction under section 319 of Cr.P.C.
while summoning the accused.

29. When this court examines the
impugned order passed by the learned
Additional District and Sessions Judge,
Gonda in the light of the ratio of the
Judgments aforesaid, it emerges from the
order itself that the learned Additional
District & Sessions Judge, has found
prima-facie, a case against the applicant
and there is no such finding or the degree
of satisfaction recorded that there are much
stronger case available against the applicant
and as such, this court finds that the learned
trial court has ignored the law enunciated
by the Apex Court.

30. Resultantly, the impugned order
dated 06-04-2023 is hereby set aside.

31. The matter is remitted back to the
trial court concerned, to take a fresh
decision, after considering the application
under section 319 of Cr.P.C., within a
period of sixty days, from the date of this
order.

32. With the aforesaid observations,
the instant application is hereby allowed.
----------
(2023) 5 ILRA 1246
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application U/S 482. No. 12560 of 2023

Yograj Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vivek Kumar Maheshwari, Sri Anoop
Trivedi (Sr. Adv.)

Counsel for the Opposite Parties:
G.A., Sri Nipun Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power , Section 216 - Court may alter
charge , Section 319 - Power to proceed
against other persons appearing to be
guilty of offence , Section 212 - Particulars
as to time, place and person , Indian Penal
Code, 1860 - Sections 302 - murder - if the
alteration or addition to a charge is such
that no prejudice is caused to either the
parties, court may, in its discretion,
proceed with the trial by amending the
said technical defects.(Para - 17)

(B) Criminal Law - Prejudice is shown
based on the facts of the case - In judging
a question of prejudice, as of guilt - courts
must act with a broad vision and look to
5 All. Yograj Singh Vs. State of U.P. & Anr.
1247
the substance and not to the technicalities
- their main concern should be to see
whether the accused had a fair trial -
whether he knew what he was being tried
for - whether the main facts sought to be
established against him were explained to
him fairly and clearly - and whether he
was given a full and fair chance to defend
himself.(Para -15)

Applicant's application for amending charge to
'place of occurrence' - rejected under Section
216 Cr.P.C. - prosecution witnesses examined -
regarding place of incident - adding place of
incident in the said charge - same does not
cause
any
prejudice
to
either
of
the
parties.(Para - 2,17)

HELD:- Direction to court below to amend the
charge by incorporating the 'place of incident' in
the original charge as per provision of Section
216(3) Cr.P.C. without recourse to further
evidence . Proceed with trial expeditiously;
following Apex Court's time frame.(Para - 18)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:

1. Darbar Singh Vs St. of Punj., (2012) 10 SCC
476

2. Main Pal Vs St. of Har., AIR 2010 SC 3292

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Mr Vivek
Kumar Maheshwari, learned counsel for
the applicant, Mr Nipun Singh, learned
counsel for the opposite party no. 2, Mr R.
P. Mishra, learned AGA for the State and
perused the material on record.

2. By means of this application,
applicant/informant has prayed for setting
aside the order dated 20.3.2023 passed by
learned
District
and
Sessions
Judge,
Muzaffar Nagar in S.T. No. 561 of 2004
(State Vs Naresh Tikait), pending in the
Court of Addl. Sessions Judge, Court No.
5, Muzaffar Nagar, relating to Case Crime
no. 97 of 2003, under Section 302 IPC, P.S.
Bhaurakalan,
District
Muzaffarnagar
whereby the application of the applicant
under Section 216 Cr.P.C. (paper No. 337
Kha) for amending the charge to the extent
of 'place of occurrence' has been rejected

3. Brief facts of the case are that the
applicant lodged an FIR in relation to
murder of his father, namely, Jagveer
Singh, on 7.09.2003 vide Case Crime No.
97 of 2003, under Section 302 IPC, at P.S.
Bhaurakalan,
District
Muzaffarnagar
alleging therein that on 6.9.2003, when the
informant along with his father and one
Ramveer Singh, while going towards their
village, are said to have reached in front of
the house of one Parveen son of Ramphal
at about 6 p.m. in Ambassdor Car, which
was being driven by father of the
informant, at that time, one Naresh Tikait
son of Mahendra Tikait, Parveen son of
Ramphal and Bittu @ Patwari son of
Ramphal were standing in the way in a
white coloured Maruti car in front of his
house, and, as soon as father of the
informant, decreases the speed of his
vehicle, all the three accused persons,
having country made pistols in their hands,
came out of their car and accosted the
vehicle of the informant from all sides, and,
thereafter accused Praveen and Naresh are
said to have shot dead his father by country
made pistols. It is further alleged that at the
time of incident, there were sufficient sun
light and on raising alarm all the three
accused persons fled away from the spot
after leaving their Maruti Car. It is further
alleged that informant immediately took his
father to the Government Hospital but he
died on the way to Hospital.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The matter was investigated by the
police
and
thereafter
the
case
was
transferred to the CBCID, UP Police and
after investigation charge sheet was filed
before the concerned Court exonerating the
accused
Naresh
Tikait,
who
lateron
summoned by the trial court in exercise of
power under Section 319 Cr.P.C. Charge is
said to have been framed against the
accused Naresh Tikait under Section 302
IPC on 11.6.2007 by Addl. Sessions Judge,
Court No. 6, Muzaffarnagar, to the
following effect as quoted below:-

"That on 6.9.2003 at 6 p.m. at
village Alawalpur Majra, Police station
Baura kalan, District Muzaffarnagar with
common
intention
you
and
your
companions Paveen Kumar and Rajeev
Kmar caused grievous injuries by country
made pistols to informant's father Jagveer
Singh and due to said injuries, he
succumbed, as such you committed murder
which is punishable under Section 302 read
with Section 34 of the IPC and is
cognizable by this Court."

5. The grievance of the applicant is
that
in
the
FIR,
itself,
the
informant/applicant
has
specifically
mentioned the place of occurrence that the
accused persons murdered his father in
front of the house of accused Praveen
Kumar at Village Alawalpur Majra and
during the course of investigation, the
Investigating Officer has also prepared the
site plan in which he has also mentioned
that the occurrence took place in front of
the house of Praveen but the trial court
committed illegality in framing of the
charge
against
the
accused
by
not
mentioning
the
specific
place
of
occurrence. Further, the applicant, who has
been examined as P.W.-1 in his deposition,
he had specifically stated that on 6.9.2003
at 6 p.m., the accused persons fired at his
father in front of the house of accused
Praveen at Village Alawalpur Majra.
Another eye witness i.e. P.W.-2, namely,
Yashpal has also stated in his deposition to
the same effect. It is also alleged that
during course of final argument, counsel
for the applicant noticed that the charge
framed against the accused Naresh Tikait is
defective and needs alteration in the charge
framed against the accused. Therefore,
applicant/informant moved an application
before the trial Court on 17.3.2023 with a
prayer that in the charge framed against the
applicant the place of occurrence has been
typed as Village Alawalpur and no specific
place has been mentioned, whereas in the
FIR and in the site plan the place of
occurrence is in front of the house of
accused Praveen at Village Alawalpur
Majra is mentioned, as such to fix the place
of occurrence in front of the house of the
accused Praveen Kumar, and also to avoid
any technical error in future to get benefit
of the same by either side, it becomes
necessary to amend the charge to the extent
that the place of occurrence be mentioned.
The said application has been rejected by
the court below vide impugned order,
which is subject matter of challenge before
this Court.

6. Record further discloses that the
applicant also approached the Apex Court
by filing Transfer Application on account
of the threats extended by the accused with
a prayer for transferring the Sessions Trial
pending before the court of 5th Addl.
District
and
Sessions
Judge,
Muzaffarnagar, UP to the court of District
and Sessions Judge, Tishazari Courts, New
Delhi, which was dismissed by the Hon'ble
Supreme Court vide order dated 10.2.2023
considering the fact that the trial is pending
since the last 19 years and the fact that the
5 All. Yograj Singh Vs. State of U.P. & Anr.
1249
evidence is already over and the trial is at
the stage of final arguments. However, it
was directed that the trial is conducted in a
peaceful
and
fair
manner
as
it
is
apprehended on behalf of the applicant that
the accused are given a special treatment.
Trial court was also directed to conclude
the trial at the earliest and preferably,
within a period of six months from today.

7. Record further discloses that
thereafter applicant also filed transfer
application before the District and Sessions
Judge, Muzaffar Nagar with a prayer to
transfer the said sessions trial to other
appropriate
court
of
District,
Muzaffarnagar, which too was dismissed
by order dated 23.02.2023 passed by
District and Sessions Judge, Muaffarnagar.
Aggrieved by the said order, applicant
preferred Transfer Application (Criminal)
No. 156 of 2023 before this Court, which is
stated to be pending.

8. Submission of learned counsel for
the applicant is that the charge framed
against the accused is not sustainable in law
in view of the provision of Section 212 of
Cr. P.C. as the specific place the incident is
not mentioned in the charge framed against
the accused.

9.

Learned
counsel
for
the
accused/respondent no. 2 stated that there is
no irregularity in the charge framed against
the applicant as the prosecution witnesses
have stated in their deposition regarding the
place
of
incident
and
during
cross
examination questions regarding place of
incident have been asked, therefore, no
prejudice would be caused to either side. It
is further argued that the defect in framing
of the charges must be so serious that it
cannot be covered under Section 464/465
Cr.P.C., which provide that, an order of
sentence or conviction shall not be deemed
to be invalid only on the ground that no
charge was framed or that there was some
irregularity or omission or misjoinder of
charges, unless the court comes to the
conclusion that there was also, as a
consequence, a failure of justice. In
determining whether any error, omission or
irregularity in framing the relevant charges,
has led to a failure of justice, the court must
have regard to whether an objection could
have been raised at an earlier stage during
the proceedings or not. While judging the
question of prejudice or guilt, the court
must bear in mind that every accused has a
right to a fair trial where he is aware of
what he is being tried for and where the
facts sought to be established against him,
are explained to him fairly and clearly, and
further, where he is given a full and fair
chance to defend himself against the said
charge(s). In support of his argument, he
placed reliance on the case of (2012) 10
SCC 476 Darbar Singh Vs State of
Punjab.

10. To the contrary, learned AGA
appearing for the State contended that the
charge against the accused was framed on
11.06.2007, under Section 302/34 I.P.C. It
is evident from the Charge that except
place of occurrence, date and time of
occurrence has been mentioned therein. It
is further submitted that the charge is an
accusation made against a person in respect
of an offence alleged to have been
committed by him/her and the basic
requirement is that it must be so framed as
to give the accused person a fairly
reasonable idea of the case which he/she
has to face. The mere irregularity in
framing the charge against the accused,
does not vitiate the trial, unless some
prejudice is caused to the accused. It is
further submitted that the scope of powers
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
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
judgement 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.

11. To buttress his argument, learned
AGA further pointed out that Section 215
Cr.P.C. clearly states that no error in stating
either the offence or the particulars
required to be stated in the charge, and no
omission to state the offence or those
particulars, shall be regarded at any stage
of the case as material, unless the accused
was in fact misled by such error or
omission, and it has occasioned a failure of
justice. Section 464 Cr.P.C. also provides
that no finding sentence or order by a
competent Court shall be deemed to be
invalid merely on the ground that no charge
has been framed or that there are some
errors, omission or irregularity in the
charge unless some failure of justice has
occurred on that ground. In order to take
the benefit of the same either of the parties
must establish that failure of justice has
been occasioned by an error or defect in
stating the particulars in the charge. No
such plea of any prejudice supported with
evidence was adduced suggestive of the
failure of justice due to any defect in
framing of charge. There is also nothing on
record to show that any prejudice has been
caused to the applicant due to such
omission.
Under
such
circumstances
omission
to
mention
the
place
of
occurrence in the charge does not vitiate
the trial, when the trial is at the fag end.
Learned AGA has also pointed out that
there is sufficient material available against
the accused, which can at best be
appreciated in evidence during trial. Thus,
the impugned order does not suffer from
any illegality, infirmity or any error of law
justifying interference by this Court in
exercise of its power under Section 482
Cr.P.C.

12. Considered the submission of
learned counsel for the parties and perused
the record.

13. Perusal of the impugned order
discloses
that
while
dismissing
the
application,
learned
Trial
Court
has
returned a finding to the effect that during
the cross examination of the prosecution
witnesses, the question regarding place of
incident have been asked by the accused. It
is clear from the evidence that the accused
had full knowledge about the place of
occurrence of the crime committed by them
and the accused during trial have enough
opportunity to explain the situation of the
crime committed by them. It has been
clearly stated in the court by the learned
counsel for the accused Naresh Kumar that
the accused had no suspicion regarding the
incident alleged against him and the
prosecution witnesses have been clearly
cross-examined about the place of incident.
Thus there arises no question of prejudice
to be caused to either of the parties.

14. Not doubt, it is trite law that 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
5 All. Yograj Singh Vs. State of U.P. & Anr.
1251
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.

15. How prejudice is to be shown ?
Much depends on facts of the case. Hon'ble
the Apex Court in the case of Main Pal Vs
State of Haryana, AIR 2010 SC 3292
enunciated the following principle as
under:

(i) The object of framing a charge is
to enable an accused to have a clear idea of
what he is being tried for and of the essential
facts that he has to meet. The charge must also
contain the particulars of date, time, place and
person against whom the offence was
committed, as are reasonably sufficient to give
the accused notice of the matter with which he
is charged.

(ii) The accused is entitled to
know with certainty and accuracy, the exact
nature of the charge against him, and unless
he has such knowledge, his defence will be
prejudiced. Where an accused is charged with
having committed offence against one person
but on the evidence led, he is convicted for
committing offence against another person,
without a charge being framed in respect of it,
the accused will be prejudiced, resulting in a
failure of justice. But there will be no
prejudice or failure of justice where there was
an error in the charge and the accused was
aware of the error. Such knowledge can be
inferred from the defence, that is, if the
defence of the accused showed that he was
defending himself against the real and actual
charge and not the erroneous charge.

(iii) In judging a question of
prejudice, as of guilt, the courts must act
with a broad vision and look to the
substance and not to the technicalities,
and their main concern should be to see
whether the accused had a fair trial,
whether he knew what he was being
tried for, whether the main facts sought
to be established against him were
explained to him fairly and clearly, and
whether he was given a full and fair
chance to defend himself."

16. However, this court is also
mindful of the provisions of Section 216
(3) Cr.P.C., which reads as under:-

"(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."

17. Going through the aforesaid
provision, it is very much clear that if the
alteration or addition to a charge is such
that no prejudice is caused to either the
parties, court may, in its discretion, proceed
with the trial by amending the said
technical defects. It is admitted by the
parties that the prosecution witnesses have
been examined regarding the place of
incident and by adding the place of incident
in the said charge the same does not cause
any prejudice to either of the parties.

18. In view of above, the court below
is directed to amend the charge by
incorporating the 'place of incident' in the
original charge as per provision of Section
216(3) Cr.P.C. without recourse to further
evidence and thereafter may proceed with
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial and conclude the same as
expeditiously as possible keeping in view the
time frame as directed by the Apex Court.

19. With aforesaid observation, the
application is disposed of.
----------
(2023) 5 ILRA 1252
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application U/S 482. No. 33349 of 2022

Kalika Pratap Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shri Krishna Mishra, Sri Ajay Mishra, Sri
Sheshadri Trivedi, Sri Satish Trivedi (Sr.
Adv.)

Counsel for the Opposite Parties:
G.A., Sri Ashish Pandey, Pragya Pandey, Sri
Radhey Shyam Shukla

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power,
Section
173(8)
-

further
investigation into the matter , Indian
Penal Code, 1860 - Sections 420,
376,306, 406,120-B, Dowry prohibition
Act,1961 - Section 3/4 , Information
Technology Act , 2000 - Section 67 -
Publishing
of
information
which
is
obscene in electronic form - Court cannot
adjudicate disputed question of fact under
Section 482 Cr.P.C; only prima facie case
considered - Accused's disputed defense
not considered at this stage - Applicant
has discharge rights under Section 239 or
227/228 Cr.P.C. .(Para - 11)

Accused developed a friendship with deceased -
had a long relationship - suddenly withdrew -
potentially
causing
depression
or
embarrassment for victim - case not under
Section 306 on refusal to marry - rather a case
where accused had developed a relationship
with the victim and later refused to continue -
victim may have considered poison as a possible
solution.(Para -12 )

HELD:- Court cannot examine relationship
between deceased and applicant at this stage,
as it is not relevant to charge sheet stage. Court
must examine the documents collected during
investigation by police and any alleged evidence
during trial. Court cannot examine any defences
that have not yet been placed before the court
below, as the stage of placing the defence
version does not arise at this stage. Request for
quashing case proceedings and charge sheet
refused; application lacks force.(Para - 12,13)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

1. Vinay Tyagi Vs Irshad Ali @ Deepak & ors.,
2012 (2) Supreme (SC) 903

2. M/s Pepsi Food Ltd & anr. Vs Special Judicial
Magistrate & ors., 1998 UPCr.R. paged 118

3. Mandar Deepak Pawar Vs The St. of Maha. &
anr., (Criminal Appeal No.442 of 2022)

4. Gangula Mohan Reddy Vs St. of A.P., (2010)1
SCC 750

5. Daxaben Vs The St. of Guj. & ors., SLP
Criminal No. 1132-1155 of 2022

6. M/s Neeharika Infrastructure PVT Ltd. Vs St.
of Maha., AIR 2021 SC 1918

7. R.P. Kapur Vs St. of Punj., A.I.R. 1960 S.C.
866

8. St. of Haryana Vs Bhajan Lal, 1992 SCC (Cr.) 426

9. St. of Bihar Vs P.P.Sharma, 1992 SCC (Cr.) 192

10. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cr.)
283,