TMI Blog2020 (1) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... - It is evident from the record that the earlier Additional Junior Civil Judge perused the additional charge-sheet and took cognizance of offences under Sections 406 and 420 of the IPC. However, at the time of framing charges, the additional charge-sheet was not brought to the notice of the court and the framing of charges against the appellant under Sections 406 and 420 was not considered. Therefore, the appellant was charged only for offences under Section 498A of the IPC along with Sections 3 and 4 of the Dowry Prohibition Act. It was when an application under Section 216 of CrPC was filed by the public prosecutor on 13 February 2017 that it was brought to the notice of the Trial Judge that charges under Sections 406 and 420 were not framed. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 420 of the Indian Penal Code 1860 [ IPC ]. 2 On 10 March 2011, a First Information Report [ FIR ] was lodged by the fourth respondent, who is the father-in-law of the appellant, alleging that the appellant and the members of his family had harassed his daughter with demands for money and transfer of land in their names. The FIR recites that the appellant and the daughter of the fourth respondent got married in 2003. Allegedly, in 2006 the appellant and his family refused to take the complainant s daughter to the United Kingdom where her husband was staying unless her Stridhana property was transferred in their names. 3 On 30 June 2012, a charge-sheet was filed against the appellant and his parents for offences under Section 498A of the IPC along with Sections 3 and 4 of the Dowry Prohibition Act 1961 [ Dowry Prohibition Act ]. The investigating officer, upon receipt of additional information about the commission of other offences by the appellant, obtained permission from the Trial Court for further investigation. Based on the statements of various witnesses under Section 161 of the Code of Criminal Procedure 1973 [ CrPC ] with respect to the appellant raising a demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17] and set aside the Trial Court s order. The High Court held that the Trial Court while rejecting the application under Section 216 did not disclose the reasons for concluding that the ingredients of Sections 406 and 420 were not attracted and only touched upon the lapses of the prosecution in not seeking an alteration of charges during the course of the trial. The High Court while directing the framing of additional charges under Sections 406 and 420 of IPC evaluated the witness statements brought on record during the course of investigation and referred to the additional charge-sheet filed on 12 April 2013. 8 Aggrieved by the order dated 6 March 2019 of the High Court, the appellant moved this Court under Article 136 of the Constitution. 9 Ms Anitha Shenoy, learned Senior Counsel appearing on behalf of the appellant has urged the following submissions: (a) An application for alteration of charge under Section 216 was intentionally filed on the date of the pronouncement of judgment to unnecessarily delay the proceedings; (b) The FIR dated 10 March 2011, filed by the fourth respondent, has no mention of any demand or payment of ₹ 5,00,000/- to the appellant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana [(2016) 6 SCC 105]). In the present case, the investigating officer filed the additional charge-sheet only after he received additional information during the course of investigation in relation to offences under Sections 406 and 420 of the IPC. Though, the appellant was initially charged in pursuance of the original chargesheet dated 30 June 2012, subsequent evidence brought on record does not restrict the court from altering the charge; and (c) At the time of framing of charge, it is sufficient if the court is able to form a presumption regarding the existence of ingredients constituting the offence found upon the material placed before it. It is not necessary for the court to undertake an analysis of the credibility, veracity or evidentiary value of the materials placed before it (Sajjan Kumar v Central Bureau of Investigation [(2010) 9 SCC 368]). 11 The rival submissions fall for our consideration. 12 In the present case, the investigating officer upon receipt of additional information about the alleged commission of offences under Sections 406 and 420 by the appellant, obtained permission for further investigation. Statements of witnesses recorded under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming of charges against the appellant under Sections 406 and 420 was not considered. Therefore, the appellant was charged only for offences under Section 498A of the IPC along with Sections 3 and 4 of the Dowry Prohibition Act. It was when an application under Section 216 of CrPC was filed by the public prosecutor on 13 February 2017 that it was brought to the notice of the Trial Judge that charges under Sections 406 and 420 were not framed. 14 In order to adjudicate upon the dispute, it is necessary to refer to Section 216 of CrPC: 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the judgment is pronounced. It is now well settled that the power vested in the Court is 12 (2017) 3 SCC 347 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. (Emphasis supplied) 17 In Anant Prakash Sinha v State of Haryana [(2016) 6 SCC 105], a two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved, it can alter and add to 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 sub-sections (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. (Emphasis supplied) 19 In Jasvinder Saini v State (Govt of NCT of Delhi) [(2013) 7 SCC 256], this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be determined whether the accused may be convicted for the additional charges. The 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. 21 The appellant has relied upon a two-judge Bench decision of this Court in Onkar Nath Mishra v The State [(2008) 2 SCC 561] to substantiate the point that the ingredients of Sections 406 and 420 of the IPC have not been established. This Court while dealing with the nature of evaluation by a court at the stage of framing of charge, held thus: 11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC. Whether there is truth in the improved version of LW.1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial. It is also evidence from the record that the additional charge sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed. (Emphasis supplied) 23 The test adopted by the High Court is correct and in accordance with decisions of this Court. In the counter affidavit filed by the fourth respondent before this Court, depositions of PW 1 (LW 1), PW 5 (LW 12) and PW 6 (LW 13) and their cross-examination have been annexed. The material on record supports the possibility that in April 2006, the appellant demanded ₹ 5,00,000/- from PW 1, who is the complainant, in order to secure a doctor s job for the complainant s daughter in the United Kingdom. According to PW 1, he borrowed the amount from PW 5 (brother-in-law of PW 1) and paid it to the appellant in the presence of PW 5 and PW 6 (friend of PW 1). Without pronouncing on the probative value of such evidence, there exists sufficient material on record th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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