1

A.F.R.

Neutral Citation No. - 2023:AHC:242512

Reserved on 07.08.2023

Delivered on 22.12.2023

Court No. - 90

Case :- APPLICATION U/S 482 No. - 17003 of 2023

Applicant :- Om Prakash @ Jani

Opposite Party :- State of U.P.

Counsel for Applicant :- Chandrakesh Mishra,Abhishek

Kumar Mishra,Sr. Advocate

Counsel for Opposite Party :- G.A.,Raj Kumar Kesari

Hon'ble Dinesh Pathak,J.

1. Heard Sri Daya Shankar Mishra, learned Senior Counsel

assisted by Sri Abhishek Kumar Mishra, learned counsel for

applicant and Sri Raj Kumar Kesari learned counsel for

opposite party No.2 as well as learned AGA for the State.

2. Learned counsel for opposite party No.2 has refused to

file any counter affidavit in the instant matter, therefore, present

application is being decided on merits with the consent of

learned counsel for the parties.

3. The applicant has invoked the inherent jurisdiction of this

Court under Section 482 Cr.P.C. assailing the order dated

23.11.2022 passed by Additional District & Sessions Judge,

Court No.3, Varanasi in Sessions Trial No. 651 of 2020 arising

out of Case Crime No. 300 of 2005, under Sections 372, 373

I.P.C. and Sections 3, 4, 5, 6, 9 of Immoral Traffic (Prevention)

Act, 1956, Police Station Manduwadih, District Varanasi.

4. An FIR, being Case Crime No. 300 of 2005, under

Sections 373, 373 I.P.C. and under Sections 3, 4, 5, 6, and 9 of

2

Immoral Traffick (Prevention) Act, 1956 has been lodged by the

Police Inspector. Some young girls have been recovered from

two different places. Charge sheet has been submitted against

two accused persons, however, present applicant was neither

named in the FIR nor arraigned in the charge sheet as an

accused. Ultimately, Sessions Trial No. 161 of 2006 was

concluded convicting both accused and the same was affirmed

by this Court in Crl. Appeal No. 5583 of 2016 vide order dated

05.08.2019. During this period an application dated 22.06.2010

(Annexure-2) has been moved under Section 319 Cr.P.C. to call

upon the eight persons including present applicant as an

accused for trial together with other co-accused. The said

application was rejected by the trial court vide order dated

24.05.2021. High Court, on application being filed under

Section 482 Cr.P.C. No. 29267 of 2011, has relegated the parties

before the trial court with a direction to reconsider the

application under Section 319 Cr.P.C., vide order dated

14.09.2011. Learned trial court, after remand, has passed the

order dated 07.01.2012 with a direction that the matter may be

reinvestigated under Section 173(8) Cr.P.C. In pursuance

thereof, after due investigation, Investigating Officer has

submitted the supplementary charge sheet dated 17.07.2020

(Annexure No.22) arraigning the present applicant under

Sections 3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act,

1956 and under sections 372 and 373 I.P.C. Considering the

supplementary charge sheet dated 17.07.2020, learned trial

court has framed the charges against the present applicant vide

order dated 20.10.2020 (Annexure No.15). At later stage,

prosecution has moved an application dated 12.03.2021 (Paper

No.10 Kha) (Annexure-20) beseeching frame one additional

3

charge under Section 376 I.P.C. against the present applicant.

Learned trial court, vide order impugned dated 23.11.2022

(Anneuxre-21), has allowed the aforesaid application (Paper

No.10 Kha) and fix next date 18.12.2022 for framing of

additional charge against the present applicant. On the pointed

query raised to the learned counsel for the parties they have

stated that till date charge has not been framed under Section

376 I.P.C. Having been aggrieved, with order dated

23.11.2022, allowing the application (Paper No.10 Kha),

applicant (accused) has invoked the inherent jurisdiction of this

Court by moving the present application.

5. Learned counsel for the applicant has advanced three fold

submissions before this Court. First relating to the

maintainability of the application dated 12.03.2021 (Paper

No.10 Kha) on the ground that the prosecution or any other

interested persons have no locus standi to move any application

before the court concerned for alteration or addition of charges

under Section 216 Cr.P.C. In support of this submission, learned

counsel for the applicant placed reliance upon the judgment of

Hon'ble Supreme Court in the case of P. Kartiklakshmi Vs. Sri

Ganesh and Another reported in (2017) 3 SCC 347, Sushil

Dhameja and Another Vs. State of U.P. and Another decided

by co-ordinate Bench of this Court vide order dated

18.04.2023 passed in Application U/s 482 Cr.P.C. No. 12344 of

2023 and Kuldeep Vs. State of U.P. decided by co-ordinate

Bench of this Court reported in 2019 2 ACR 1947. He has

placed reliance as well upon the judgment of Madras High

Court in the case of Krishnammal Vs. The Revenue Divisional

Officer and others reported in (2008) 0 CrLJ2845. Second

submission raised by learned counsel for applicant is that no

4

additional material is available on record to frame additional

charge indicting the present applicant under Section 376 I.P.C.

Thirdly, learned counsel for the applicant has tried to challenge

the sanctity and genuineness of statement made by victim u/s

161 Cr.P.C. during re-investigation and submits that the

statement of victim under Section 161 Cr.P.C. as referred in the

order dated 23.11.2022 was not recorded, in accordance with

law, during re-investigation. It is further submitted that from

perusal of the record, prima facie, it appears that alleged

statement of victim was got recorded by some lady Constable

namely, Poonam Verma. It was not recorded by Investigating

Officer, therefore, same cannot be treated to be part of the re-

investigation. It is next submitted that under Section 13(2) of

Immoral Traffic (Prevention) Act, 1956, the Special Police

Officer shall not be below the rank of an Inspector of Police,

whereas instant matter statement was get recorded by the police

constable which has got no sanctity in the eye of law. In support

of his submission learned counsel for applicant has cited the

case of Delhi Administration Vs. Ram Singh 1962 0 AIR (SC)

63. It is further submitted that learned trial court has illegally

made an observation in its order dated 23.11.2022 that the

victim in her statement recorded under Section 161 Cr.P.C. has

made allegations of rape against the present applicant.

However, in her initial statement recorded under Section 164

Cr.P.C. no such allegation was made by the victim against the

present applicant. Lastly, it is submitted that the order dated

23.11.2022 passed by learned trial court is liable to be quashed

being illegal, unwarranted under the law and tainted with

irregularities.

5

6. Per contra, learned counsel for the respondent no. 2 has

contended that in present application, applicant has not

challenged the entire criminal proceeding except an order

impugned dated 23.11.2022 by which application (Paper No.

10Kha) has been allowed for the purposes of indicting the

accused under Section 376 I.P.C. It is further contended that the

application (Paper No. 10Kha) cannot be treated to be an

independent application rather it is a piece of information given

to the court concerned for the irregularity in the proceedings

wherein statement under Section 161 Cr.P.C. has not properly

been appraised by the the Court concerned, consequently

offence under Section 376 I.P.C. has been left out to be

considered. It is further contended that the victim/ prosecutrix

being a lady has to be examined by the lady officer, therefore,

her statement has rightly been recorded by lady constable

namely, Poonam Verma on the instructions of the Investigating

Officer. Learned counsel for the respondent has drawn attention

of the Court towards the second proviso to sub-section 3 of

Section 161 Cr.P.C. wherein lady police officer has been

entrusted to record the statement of a woman against whom

offence under several sections of I.P.C. including Section 376

I.P.C. has been committed. He has also placed reliance on the

provisions as enunciated under Section 15, sub-Section 6-A, of

the Immoral Traffic Act wherein victim is required to be

interrogated by the woman police officer. Lastly it is contended

that learned trial court has rightly passed order impugned dated

23.11.2022, which does not warrant any indulgence of this

Court in exercise of inherent jurisdiction under Section 482

Cr.P.C., therefore, the instant application is liable to be rejected

being misconceived and devoid of merits.

6

7. In reply, learned counsel for the applicant submits that the

copy of statement of victim under section 161 Cr.P.C., as

referred in the order impugned, has not been supplied/given to

the present applicant (accused), therefore, he was not in a

position to go through the aforesaid statement. He has further

submitted that it appears that alleged statement under Section

161 Cr.P.C. dated 05.02.2020, as referred by the respondents in

his impleadment application has been planted subsequently for

the purpose of framing additional charge u/s 376 I.P.C. It is

further submitted that for the purposes of investigation under

the Immoral Traffic Act a Special Police Officer not below the

rank of Inspector of Police is authorised to investigate or record

the statement of the victim, therefore, in the instant matter

statement recorded by the concerned lady constable vitiates the

process of the entire statement under Section 161 Cr.P.C.

8.Having considered the rival submissions advanced by

learned counsel for parties and perusal of record, it manifested

that the name of the present applicant was emerged during re-

investigation under Section 173(8) Cr.P.C. and he has been

arraigned in the supplementary charge sheet dated 17.07.2020.

During re-investigation victim has made her statement under

Section 161 Cr.P.C. which is evident from the copy of the

supplementary charge sheet (Annexure No.5) wherein name of

victim has find placed at serial No.2. Having considered the

material on record filed along with the subsequent charge sheet

dated 17.07.2020, learned trial court has framed as many as

seven charges, vide order dated 20.10.2020, against the present

applicant. At later stage, prosecution has moved a miscellaneous

application to frame additional charge under Section 376 I.P.C.

inasmuch as same has been left to be considered whereas

7

specific allegations has been made by the victim in her

statement under Section 161 Cr.P.C. in this regard.

9. Learned counsel for the applicant in his first submission

has raised question qua maintainability of the application (Paper

No.10 Kha) moved on behalf of the prosecution with a

submission that there is no provision under the law to move

such application before the trial court who himself competent to

subtract or addition of charges in exercise of power under

Section 216 Cr.P.C. On the contrary learned counsel for

opposite party No.2 has contended that application (Paper No.

10 Kha) under Section 216 Cr.P.C. moved by the prosecution

was nothing but a piece of information to bring the relevant fact

in the notice of learned trial court, which has been over cited by

the concerned court, to eliminate defect in framing of the

charge.

10. For analyzing the divergent submissions made by the

counsel for the rival parties it would be befitting to consider the

scope of Section 216 Cr.P.C., which is quoted herein below :-

"(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.

8

(5) If the offence stated in the altered or added charge is one

for the prosecution of which previous sanction is necessary,

the case shall not be proceeded with until such sanction is

obtained, unless sanction had been already obtained for a

prosecution on the same facts as those on which the altered or

added charge is founded."

11. Bare perusal of Section 216 Cr.P.C. clearly denotes that

the court is empowered to alter charges at any stage of trial

before the delivery of judgment. Question with respect to the

maintainability of miscellaneous application (Paper No. Kha)

moved by prosecution or any other party for framing of

additional charges under Section 216 Cr.P.C. is relevant for the

purposes of deciding the instant matter. In the case of P.

Kartikalakshmi (Supra) Hon'ble Supreme Court has

expounded that there is no right to any party to seek for a

subtraction or addition of charges by filing any miscellaneous

application as a matter of right. The relevant paragraph Nos. 6

and 7 of the judgment is quoted herein below :-

"6. Having heard the learned counsel for the respective

parties, we find force in the submission of the learned Senior

Counsel for Respondent No.1. Section 216 Cr.P.C. empowers

the Court to alter or add any charge at any time before the

judgment is pronounced. It is now well settled that the power

vested in the Court is exclusive to the Court and there is no

right in any party to seek for such addition or alteration by

filing any application as a matter of right. It may be that if

there was an omission in the framing of the charge and if it

comes to the knowledge of the Court trying the offence, the

power is always vested in the Court, as provided under Section

216 Cr.P.C. to either alter or add the charge and that such

power is available with the Court at any time before the

judgment is pronounced. It is an enabling provision for the

Court to exercise its power under certain contingencies which

comes to its notice or brought to its notice. In such a situation,

if it comes to the knowledge of the Court that a necessity has

arisen for the charge to be altered or added, it may do so on

its own and no order need to be passed for that purpose. After

such alteration or addition when the final decision is rendered,

it will be open for the parties to work out their remedies in

accordance with law.

9

7. We were taken through Sections 221 and 222 Cr.P.C. in this

context. In the light of the facts involved in this case, we are

only concerned with Section 216 Cr.P.C. We, therefore, do not

propose to examine the implications of the other provisions to

the case on hand. We wish to confine ourselves to the

invocation of Section 216 and rest with that. In the light of our

conclusion that the power of invocation of Section 216 Cr.P.C.

is exclusively confined with the Court as an enabling provision

for the purpose of alteration or addition of any charge at any

time before pronouncement of the judgment, we make it clear

that no party neither de facto complainant nor the accused or

for that matter the prosecution has any vested right to seek any

addition or alteration of charge, because it is not provided

under Section 216 Cr.P.C. If such a course to be adopted by

the parties is allowed, then it will be well-nigh impossible for

the criminal court to conclude its proceedings and the concept

of speedy trial will get jeopardised."

12. Hon'ble Supreme Court has further clarified in the case of

Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana

and Another (2016) 6 SCC 105 that it is obligatory at the part

of the court to see that no prejudiced cause to the accused and

he is allowed to have a fair trial and court can change or alter

the charges if there is no defect or something is left out.

Relevant paragraph No.18 of the aforesaid judgment is quoted

herein below :-

"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.

10

(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."

13. In the aforesaid judgment Hon'ble Supreme Court has

also examined the maintainability of the application moved by

the private party for alteration of charge. Parting with the matter

Hon'ble Supreme Court has expounded that by way of

application relevant fact has brought to the knowledge of

learned Magistrate about the defect in framing the charges,

therefore, Magistrate has not committed any error in

entertaining the said application. Relevant paragraph Nos. 21

and 22 of the aforesaid judgment is quoted herein below :-

"21. Presently to the second aspect. Submission of Mr. Sharan

is that the learned Magistrate could not have entertained the

application preferred by the informant, for such an application

is incompetent because it has to be filed by the public

prosecutor. In this regard, he has laid stress on the decision in

Shiv Kumar v. Jukam Chand and another23. In the said case,

the grievance of the appellant was that counsel engaged by

him was not allowed by the High Court to conduct the

prosecution in spite of obtaining a consent from the concerned

Public Prosecutor. The trial court had passed an order to the

extent that the advocate engaged by the informant shall

conduct the case under the supervision, guidance and control

of the Public Prosecutor. He had further directed that the

Public Prosecutor shall retain with himself the control over the

proceedings. The said order was challenged before the High

Court and the learned single Judge allowing the revision had

directed that the lawyer appointed by the complainant or

private person shall act under the directions from the Public

Prosecutor and may with the permission of the court submit

written arguments after evidence is closed and the Public

Prosecutor in-charge of the case shall conduct the

prosecution. This Court referred to Sections 301, 302(2), 225

CrPC and various other provisions and came to hold as

follows:- "

11

"13. From the scheme of the Code the legislative

intention is manifestly clear that prosecution in a

Sessions Court cannot be conducted by anyone

other than the Public Prosecutor. The legislature

reminds the State that the policy must strictly

conform to fairness in the trial of an accused in a

Sessions Court. A Public Prosecutor is not

expected to show a thirst to reach the case in the

conviction of the accused somehow or the other

irrespective of the true facts involved in the case.

The expected attitude of the Public Prosecutor

while conducting prosecution must be couched in

fairness not only to the court and to the

investigating agencies but to the accused as well.

If an accused is entitled to any legitimate benefit

during trial the Public Prosecutor should not

scuttle/conceal it. On the contrary, it is the duty of

the Public Prosecutor to winch it to the fore and

make it available to the accused. Even if the

defence counsel overlooked it, the Public

Prosecutor has the added responsibility to bring it

to the notice of the court if it comes to his

knowledge. A private counsel, if allowed a free

hand to conduct prosecution would focus on

bringing the case to conviction even if it is not a fit

case to be so convicted. That is the reason why

Parliament applied a bridle on him and subjected

his role strictly to the instructions given by the

Public Prosecutor.

14. It is not merely an overall supervision which

the Public Prosecutor is expected to perform in

such cases when a privately engaged counsel is

permitted to act on his behalf. The role which a

private counsel in such a situation can play is,

perhaps, comparable with that of a junior

advocate conducting the case of his senior in a

court. The private counsel is to act on behalf of the

Public Prosecutor albeit the fact that he is

engaged in the case by a private party. If the role

of the Public Prosecutor is allowed to shrink to a

mere supervisory role the trial would become a

combat between the private party and the accused

which would render the legislative mandate in

Section 225 of the Code a dead letter."

22. Being of this view, this Court upheld the order passed by

the High Court. The said decision in Shiv Kumar v. Jukam

Chand and another23 is, in our opinion, is distinguishable on

facts. The instant case does not pertain to trial or any area by

which a private lawyer takes control of the proceedings. As is

evident, an application was filed by the informant to add a

charge under Section 406 IPC as there were allegations

12

against the husband about the criminal breach of trust as far

as her stridhan is concerned. It was, in a way, bringing to the

notice of the learned Magistrate about the defect in framing of

the charge. The court could have done it suo motu. In such a

situation, we do not find any fault on the part of learned

Magistrate in entertaining the said application. It may be

stated that the learned Magistrate has referred to the materials

and recorded his prima facie satisfaction. There is no error in

the said prima facie view. We also do not perceive any error in

the revisional order by which it has set aside the charge

framed against the mother-in-law. Accordingly, we affirm the

order of the High Court in expressing its disinclination to

interfere with the order passed in revision. We may clarify that

the entire scrutiny is only for the purpose of framing of charge

and nothing else. The learned Magistrate will proceed with the

trial and decide the matter as per the evidence brought on

record and shall not be influenced by any observations made

as the same have to be restricted for the purpose of testing the

legal defensibility of the impugned order."

14. Discussing the wide power of the trial court under

Section 216 Cr.P.C. Hon'ble Supreme Court has held in the

matter of Dr. Nallapareddy Sridhar Reddy Vs. State of

Andhra Pradesh and Others (2020) 12 SCC 467, that the

court has immense power to change or altering the charges at

any stage. The relevant paragraph No.21 of the aforesaid

judgment is quoted herein below :-

"21. From the above line of precedents, it is clear that Section

216 provides the court an exclusive and wide-ranging power

to change or alter any charge. The use of the words "at any

time before judgment is pronounced" in Sub-Section (1)

empowers the court to exercise its powers of altering or

adding charges even after the completion of evidence,

arguments and reserving of the judgment. The alteration or

addition of a charge may be done if in the opinion of the court

there was an omission in the framing of charge or if upon

prima facie examination of the material brought on record, it

leads the court to form a presumptive opinion as to the

existence of the factual ingredients constituting the alleged

offence. The test to be adopted by the court while deciding

upon an addition or alteration of a charge is that the material

brought on record needs to have a direct link or nexus with the

ingredients of the alleged offence. Addition of a charge merely

commences the trial for the additional charges, whereupon,

based on the evidence, it is to be determined whether the

accused may be convicted for the additional charges. The

13

court must exercise its powers under Section 216 judiciously

and ensure that no prejudice is caused to the accused and that

he is allowed to have a fair trial. The only constraint on the

court's power is the prejudice likely to be caused to the

accused by the addition or alteration of charges. Sub-Section

(4) accordingly prescribes the approach to be adopted by the

courts where prejudice may be caused."

15. Learned counsel for the applicant has emphasized the

judgment passed by coordinate Bench of this Court in the

matter of Sushil Dhameja and Another (Supra) wherein this

Court has quashed order passed by the trial court by which

miscellaneous application u/s 216 Cr.P.C. moved on behalf of

the prosecution has been entertained and allowed. While

passing the order, coordinate Bench of this Court has referred

the dictum of Hon'ble Supreme Court in the matter of P.

Kartikalakshmi (Supra) and in the light of the said judgment

quashed the order passed by the court below and granted liberty

to the trial court to pass fresh order in the light of the provisions

as enunciated under Section 216 Cr.P.C. Learned counsel for

applicant has also placed reliance upon the case of Kuldeep

(Supra) decided by coordinate Bench of this Court. The facts of

the cited case are distinguishable in the given circumstances of

the present case. In the cited case application to alter the

charges was moved on 30.01.2018 under Section 216 Cr.P.C.

and the same was kept pending which lead to file an application

under Section 482 Cr.P.C. for a direction to expeditious disposal

of the said application. Hon'ble Judge has dismissed the

application with an observation that separate application under

Section 216 Cr.P.C. for substraction or addition of charges is not

maintainable in the eye of law, accordingly, refused to issue

direction for expeditious disposal of said application. In the

recent judgment of Soundarajan Vs. State Rep. by Inspector

of Vigilance Anti Corruption Dindigul, 2023 SCC Online SC

14

242. Hon'ble Supreme Court has expounded that even a public

prosecutor has a duty to be vigilant and if a proper charge is not

framed it is his duty to apply to the court to frame an

appropriate charge. Relevant paragraph No.16 of the said

judgment is quoted herein below :-

"We find that, in this case, the charge has been framed very

casually. The Trial Courts ought to be very meticulous

Criminal Appeal No.1592 of 2022 when it comes to the

framing of charges. In a given case, any such error or

omission may lead to acquittal and/or a long delay in trial

due to an order of remand which can be passed under sub-

section (2) of Section 464 of CrPC. Apart from the duty of the

Trial Court, even the public prosecutor has a duty to be

vigilant, and if a proper charge is not framed, it is his duty to

apply to the Court to frame an appropriate charge."

16. Having considered the matter in hand, in light of the

guidelines of Hon'ble Supreme Court as discussed above, I am

of the considered opinion that learned trial court has rightly

entertained the Misc. Application (Paper No.10Kha) as a piece

of information moved on behalf of prosecution. While deciding

the said application, learned trial court has specifically

considered the allegation of forceful sexual assault made by

victim which was left to be noticed at the time of framing

charges. In her statement u/s 161 Cr.P.C. she has made specific

allegation, as highlighted by learned trial court, of rape.

Statement of victim under Section 161 Cr.P.C. was recorded by

the Investigating Officer during re-investigation under Section

173(8) Cr.P.C. The right of accused to have a fair trial and no

prejudiced beget to him while conducting the trial is an

obligatory at the part of the court, however, said right of the

15

accused cannot be seen in isolation and same would be

considered in conjunction with the provisions as enunciated

under Section 216 Cr.P.C., Therefore, any defect in framing

charges which begot due to lack of proper consideration of the

material on record can be rectified at any stage of trial even

before the delivery of judgment in exercise of power under

Section 216 Cr.P.C. It might possible that court misled in

framing of charges, the Public Prosecutor has a duty to be

vigilant and apprise the court qua correct facts of the case in the

light of the material on record and, accordingly, take an

appropriate steps for substraction or addition of charges under

the provisions of law as enunciated under Section 216 Cr.P.C. In

this respect Hon'ble Supreme Court has clearly held in the

matter Soundarajan (Supra) that the Public Prosecutor is

entrusted with duty to apprise the court qua defect, if any, in

framing charges. In the matter in hand, ADGC (Public

Prosecutor) has moved application dated 15.03.2021 (Paper

No.10Kha) to frame additional charge under Section 376 I.P.C.

against the present applicant. Learned trial court, vide order

impugned dated 10.11.2022, has entertained the said application

as a piece of information and acknowledg the defect in framing

of charges, wherein allegation of rape made by the victim under

Section 161 Cr.P.C. has been left to be considered. Learned trial

court by order impugned has simply allowed the application and

deferred the hearing of the case for the next date to frame

additional charge and, accordingly, accused has been directed to

be present on the next date. It is admitted position to both the

parties that till date additional charge under Section 376 I.P.C.

has not been framed by the trial court in pursuance of the order

impugned dated 23.11.2022.

16

17. As discussed above, there is no iota of doubt qua wide

power of the courts for substraction or addition of charges under

Section 216 Cr.P.C. Miscellaneous application dated 12.3.2021

(Paper no.10Kha) moved on behalf of the prosecution cannot be

treated to be an independent initiation rather than a piece of

information which is pious duty of the prosecution (Public

Prosecutor) to bring the correct fact to the notice of the court

concerned so that correct charges could be framed for the

purposes of fair trial sans begetting prejudiced to any party.

Even assuming for the sake of argument, as raised by learned

counsel for the applicant, that no party has vested right to seek

any addition or alteration of charge by moving an application,

the power vested in the court would not be affected owing to

entertaining such application as a piece of information to alter

the charges, in case, there is any omission or defect in framing

of charges due to ignorance of the relevant event which is

already on the record. Once the defect has been brought to the

knowledge of the court it would not be befitting for him

oblivious to the allegation as levelled by the victim against the

present applicant. Even otherwise, having considered the

material on record learned court is competent enough to pass an

order suo moto to substract or addition of the charges.

Therefore, in my considered opinion learned trial court has not

committed any error in entertaining the application (Paper

No.10Kha) and fixed dated for framing of charge in the light of

the fact which has been brought to his knowledge in the said

application.

18. Second submission raised by learned counsel for the

applicant questioning the availability of inadequate material for

framing of additional charge u/s 376 I.P.C. is unfounded at this

17

stage. Statement of victim u/s 161 Cr.P.C., priam facie, is

suficient to alter the charges in exercise of jurisdiction u/s 216

Cr.P.C. Trial court by order impugned has simply allowed the

application acknowledging the relevant fact for the purposes of

framing of charge, however, he has deferred the matter for

framing of charge on the next date fixed. Therefore, in may

opinion opportunity is still open for the applicant to raise

question qua adequate material on record with respect to the

framing of additional charge, if any.

19.Third submission raised by learned counsel for the

applicant questioning the genuineness and sanctity of the

statement dated 05.02.2020 made by victim under Section 161

Cr.P.C. is unfounded as well. At this juncture, wherein trial

commenced after framing of charges vide order dated

20.10.2020 and, at later stage, next date fixed for addition of

charge under Section 376 I.P.C. it would not be befitting for this

Court to examine the sanctity, genuineness and correctness of

the statement made by the victim under Section 161 Cr.P.C.

during reinvestigation, whereas same can be examined by the

trial court at the appropriate stage of trial. So far as the

allegation made by the applicant in his rejoinder affidavit that

the statement made by victim under Section 161 Cr.P.C. during

reinvestigation has not been supplied to him, same can be raised

before the trial court as well at the relevant stage. At this stage

of trial, for the procedural glitch, if any, this Court cannot

assume inherent jurisdiction to quash the proceedings.

Genuineness and sanctity of the statement made by victim

under Section 161 Cr.P.C. in the light of the provision as

enunciated under Section 13(2) Immoral Traffic (Prevention)

Act, 1956 and not recording her statement by the authority

18

competent, as pointed out by learned counsel for the applicant,

is a matter of scrutiny which can more appropriately be

adjudicated upon by the trial court while examining the

relevance and admissibility of the evidence during trial. At this

juncture, this Court, in exercise of it’s inherent jurisdiction,

cannot assume the power to examine the correctness and

validity of the statement of witness under Section 161 Cr.P.C. in

the light of procedural glitch, if any, more particularly for want

of recording the statement by authority competent as allegedly

required under the Immoral Traffic (Prevention) Act, 1956.

20. In this conspectus, as above, I do not find any justifiable

ground to entertain the instant application at this juncture. There

is no illegality, perversity, ambiguity or infirmity in the order

under challenge. I found neither any abuse of process of court in

the order impugned dated 23.11.2022 nor is there any valid

ground to interfere in said order to secure the ends of justice.

There is nothing on record to demonstrate as to how present

applicant is prejudiced, or if there is any likelihood of causing

miscarriage of justice to him, owing to the order under

challenge by which application u/s 216 Cr.P.C. for framing

additional charge has simply been allowed acknowledging the

relevant fact which has been left to be considered at the time of

framing of charges.

21. Resultantly, instant application being, misconceived and

devoid of merits is dismissed with no order as to costs.

Order Date :- 22.12.2023

Md Faisal