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Kuldeep Vs. State of U.P. - (High Court of Allahabad) (05 Jul 2019)

It is only upon Court to alter charge or reject application, neither prosecution nor defence has any right for alteration of charges

MANU/UP/1584/2019

Criminal

The present application has been filed to quash the order passed by Additional District Judge, arising out of case crime registered under Sections 323, 324, 504, 506, 308 of Indian Penal Code, 1860 (IPC). Issue arise in present case is whether application moved by Applicant under Section 216 of Code of Criminal Procedure, 1973 (CrPC) is sustainable.

Section 216 of CrPC provides that, any Court may alter or add to any charge at any time before judgment is pronounced. Every such alteration or addition shall be read and explained to the accused. 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. 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.

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.

In case of P. Kartikalakshmi vs. Ganesh and Ors., Apex Court has clearly held that, application preferred by the Applicant before trial court is not maintainable, it was not incumbent upon the trial court to pass order under Section 216 of CrPC. Therefore, there is no question of said order being revisable under section 397 of CrPC. The Court has held that, it is only upon the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice, meaning thereby application can be moved to bring the facts into notice of the Court but, it is upon the Court to pass any order or not.

Therefore, in view of facts and circumstances of the case as well as law laid down by the Apex Court, it is clear that, under Section 216 of CrPC, neither prosecution nor defence has any right for alteration of charges. Their right only confined to bring some evidence or fact into the notice of Court for alteration of charge, but thereafter, it is only upon the Court to alter the charge or reject the application for alteration of charges. Accordingly, the application is dismissed.

Relevant : P. Kartikalakshmi vs. Ganesh and Ors. MANU/SC/1321/2014

Tags : CHARGES   ALTERATION   RIGHT  

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