The Allahabad High Court Lucknow Bench has reiterated that the power of Courts under Section 216 of the Criminal Procedure Code, 1973 (CrPC) to alter or add any charge at any time before the judgment is passed, is exclusive and no party has the right to file an application and seek for such addition or alteration.

The Bench of Justice Ajai Kumar Srivastava-I observed that parties could not as a matter of right seek alteration or addition of charges by filing an application. “It is made clear that the learned trial court concerned shall be at liberty to pass appropriate order keeping in view the provisions contained in Section 216 Cr.P.C., on its own instance and also keeping in view the observations made herein above after affording opportunity of hearing to all concerned parties.”

Advocate Sanjay Singh Chauhan appeared for the applicant and AGA Alok Saran appeared for the State.

In this case, an application under Section 482 of the Criminal Procedure Code, 1973 was preferred for quashing and setting aside order dated September 29, 2022, of Trial Court whereby the Trial Court in exercise of its power under Section 216 of the CrPC, has held that case under Section 304B IPC was also made out.

Against the order of Trial Court, Criminal Revision was preferred, which was also rejected by the Revisional Court by order dated February 2, 2023. Aggrieved by both orders, the applicant approached the High Court.

The High Court noted that the Trial Court has not at its own instance added the Charge of Section 304B IPC rather the application under Section 216 of the CrPC was moved by the first informant.

To examine the scope of Section 216 CrPC, the High Court relied upon the decision of the Supreme Court in the case of P. Kartikalakshmi vs. Sri Ganesh and another (2017) 3 SCC 347 wherein it was held that “In the light of our conclusion that the power of invocation of Section 216 CrPC 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 CrPC. 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.”

Accordingly, the Court held both the orders of the Trial Court and the Revisional Court to be unsustainable as the same were abuse of process of the Court, and the same were quashed.

Cause Title- Nanhey Bhaiya @ Nanhan Singh And 2 Others v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another

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