Having heard learned Counsel for the respective parties, we find force in the submission of learned senior Counsel for Respondent No. 1. Section 216 Code of Criminal Procedure 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 Code of Criminal Procedure 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 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.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1709 of 2014.
Decided On: 12.08.2014
P. Kartikalakshmi
Vs.
Ganesh and Ors.
Hon'ble Judges/Coram:
F.M. Ibrahim Kalifulla and Shiva Kirti Singh, JJ.
3. This appeal is directed against the order of the High Court dated 15.2.2013 passed in Criminal Revision Case No. 1560 of 2012 filed Under Sections 397 and 401 of the Code of Criminal Procedure.
4. Brief facts, which are required to be stated, are: that the Sessions Judge, Mahila Court, Chennai was dealing with the case in S.C. No. 130 of 2011 for an offence Under Section 376 Indian Penal Code, as against Respondent No. 1 herein. In the course of the trial, at the instance of the Appellant, an application was filed invoking Section 216 of the Code of Criminal Procedure wherein a prayer was made to add an additional charge for offence Under Section 417 Indian Penal Code along with charge Under Section 376 Indian Penal Code and to treat the additional charge as one of the original charge as provided Under Section 216(3) of the Code of Criminal Procedure.
5. The Trial Court by its order dated 10.12.2012 having declined to countenance the prayer of the Appellant, a revision came to be filed Under Section 397 Code of Criminal Procedure before the High Court, wherein the impugned order came to be passed. The learned Judge took the view, in so far as the claim of the Appellant, for framing an additional charge Under Section 216 Code of Criminal Procedure to the effect that it is not for the Accused nor for the complainant to apply and seek for such a prayer before the Trial Court. The High Court while dealing with the question as to the maintainability of the revision held that the revision was maintainable.
6. On the above issues, we heard Mr. Nagendra Rai, learned senior Counsel appearing for the Appellant, and Mr. A. Ramesh, learned senior Counsel for Respondent No. 1. Mr. Rai, in his submission, contended that in the F.I.R. there was a charge noted Under Section 417 Indian Penal Code, that ultimately when the charge came to be framed against Respondent No. 1, it was confined to Section 376 Indian Penal Code and, therefore, in the light of the power vested in the Trial Court Under Section 216 Code of Criminal Procedure, the Appellant was well justified in seeking for a prayer for addition of the charge Under Section 417 Indian Penal Code Learned senior Counsel for the Appellant also contended that when the Trial Court in its order dated 10.12.2012 having rejected the said prayer once and for all, the Appellant had no other remedy except to invoke the revisional jurisdiction of the High Court. It is contended that the conclusion of the High Court in having held that revision was maintainable was therefore justified. Learned senior Counsel contended that it was at the initiation of the complainant, the case came to be launched by the prosecution, that the complaint disclosed the ingredients of the offences Under Sections 417 and 376 Indian Penal Code and when in the F.I.R., the said offence Under Section 417 Indian Penal Code was also noted, the Appellant was well justified in seeking for addition of the said charge, more so, when the required power was available with the Trial Court Under Section 216 Code of Criminal Procedure Reliance was placed upon the decision rendered in Pratap v. State of U.P. and Ors., reported in MANU/SC/0202/1972 : (1973) 3 SCC 690.
7. As against the above submission, Mr. A. Ramesh, learned senior Counsel for Respondent No. 1 in the foremost contended that the whole attempt of the Appellant was only to delay the proceedings, inasmuch as the present application seeking for addition of charge came to be filed at the stage when the Trial Court was considering the claim of Respondent No. 1 that he was a juvenile on the date of the occurrence and, therefore, he was entitled for the benefits available to a juvenile which the Court was bound to examine Under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. Learned senior Counsel, therefore, contended that by filing the present application the Appellant successfully thwarted the Trial Court from passing orders Under Section 7A of the Juvenile Justice (Care and Protection of Children) Act.
8. That apart, learned senior Counsel further contended that there was no right in the party before the Trial Court to seek for any order to be passed Under Section 216 Code of Criminal Procedure as a matter of right either for addition or alteration of the charge and the power only vests with the Court and, therefore, the invocation of Section 397 Code of Criminal Procedure itself was not available to the Appellant to question the action of the Trial Court. Learned senior Counsel, therefore, contended that the conclusion of the learned Judge in the order impugned in having held that the revision was maintainable was not the correct legal position. Learned senior Counsel relied upon the decision in Thakur Ram and Ors. v. State of Bihar, reported in MANU/SC/0094/1965 : AIR 1966 SC 911, in support of his submission, and submitted that the power available Under Section 216 Code of Criminal Procedure can be exercised only by the Court on its own and no party has any right to seek for passing any orders under the said provision.
9. Having heard learned Counsel for the respective parties, we find force in the submission of learned senior Counsel for Respondent No. 1. Section 216 Code of Criminal Procedure 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 Code of Criminal Procedure 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 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.
10. We were taken through Sections 221 & 222 of the Code of Criminal Procedure in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 jeopardized.
11. 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 Code of Criminal Procedure Therefore, there was no question of the said order being revisable Under Section 397 Code of Criminal Procedure 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 Code of Criminal Procedure 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 No. 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.
12. With the above observations and conclusions, this appeal is dismissed.
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