Addition of Charge under S.216 Criminal Procedure Code Valid when no prejudice whatsoever caused: Himachal Pradesh High Court

 Hig h C o urt of H.P on 18 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No.1121 Decided on: 17th May 2021 Jitender Kumar …..Petitioner Versus State of Himachal Pradesh .....Respondent Coram Ms. Jyotsna Rewal Dua Judge Whether approved for reporting 1 Yes. For the Petitioner: Mr. Dalip K. Sharma Advocate. For the Respondent: Mr. Anil Jaswal Additional Advocate General with Mr. Manoj Bagga Assistant Advocate General. Jyotsna Rewal Dua JudgeAggrieved against the order dated 18.08.2020 passed by the learned Special JudgeShimla Trial Court modifying altering the charge against the petitioner instant revision petition has been preferred. State moved an application for addition of charge under Section 120B of the Indian Penal Codeas well as for alteration of charge under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act 1988. It was alleged that the accused persons had connived with each other to hatch a conspiracy and misappropriated 1 Whether reporters of print and electronic media may be allowed to see the order Hig h C o urt of H.P on 18 05 HCHP 2 public funds. This application was allowed by the learned Trial Court on 18.08.2020 to the extent that charge for offence of criminal misconduct under Section 13(1)(c) of the Prevention of Corruption Act was altered modified. Aggrieved the petitioner has challenged the aforesaid order. 2. Heard learned counsel for the parties and gone through the documents appended with the petition. 3. It is not in dispute that on 04.08.2014 learned Trial Court held that no case was made out against the accused persons namely Sant Ram Tanwar and Sher Singh Negi. These persons were discharged. Criminal Revision No.3514 filed by the State challenging this order has been dismissed by this Court on 23.09.2015. Learned counsel for the petitioner contends that when the other co accused persons stood discharged then there is no point for framing charge under Section 120B IPC against the petitioner. Primarily aggrieved against the alleged framing of additional charge against the petitioner under Section 120B IPC instant petition has been preferred. However this contention is not required to be raised at all as the learned Trial Court has not at all agreed to add charge under Section 120B IPC against the sole accused i.e. petitioner. The relevant observations of the learned Trial Court in this regard are as under: Hig h C o urt of H.P on 18 05 HCHP 3 “ . Since other accused aforementioned already stand discharged it is not appropriate at this stage to add charge under Section 120 B of IPC against accused Jitender and Pawan between whom no criminal conspiracy is alleged. Therefore this addition in charge in the considered opinion of this court cannot be made ….” In view of the observations of the learned Trial Court there is no reason for the petitioner to feel aggrieved. The amended charge appended at page 17 of the petition also does not make any reference to Section 120B IPC. Insofar as addition alteration of charge under Section 13(1)(c) of the Prevention of Corruption Act is concerned the objection of learned counsel for the petitioner is that the charges were framed on 11.4 8.2014. Almost six years thereafter the application for addition alteration of charges has been made by the State at the stage when the matter was fixed for arguments. Such an application deserves to be dismissed. I am not inclined to accept this contention for the following reasons: of the Prevention of Corruption Act. Section 13(1)(c) gives basic ingredients of the offence i.e. “if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his Hig h C o urt of H.P on 18 05 HCHP 4 control as a public servant or allows any other person so to do.”12 SCC 467 titled Dr. Nallapareddy Sridhar Reddy Versus State of Andhra Pradesh and others wherein the appellant therein was charged only for offences under Section 498A IPC alongwith Sections 3 and 4 of the Dowry Prohibition Act. In an application moved by the State under Section 216 Cr.PC for addition of charges under Sections 406 and 420 IPC it was observed as under: “15. 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.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.” Hig h C o urt of H.P on 18 05 HCHP 5 16. Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216 the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made it is to be read out and explained to the accused. The phrase “add to any charge” in Sub Sectionincludes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done “at any time before judgment is pronounced”. Sub Sectionprovides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence or the persecutor in the conduct of the case the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub Sectioncontemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused. Section 217 of the CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial. 17. The decision of a two judge Bench of this Court in P. Kartikalakshmi v Sri Ganesh dealt with a case where during the course of a trial for an offence under Section 376 of the IPC an application under Section 216 was filed to frame an additional charge for an offence under Section 417 of the IPC. F.M. Ibrahim Kalifulla J. while dealing with the power of the court to alter or add any charge held: “6. ... Section 216 CrPC 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 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.” of the Prevention of Corruption Act stood already framed against the petitioner. By allowing the application moved by the State under Section 216 Cr.PC the learned Trial Court had only allowed alteration of charge to the extent that Section 13(1)(c) of the Prevention of Corruption Act was added. During hearing of the case before the learned Trial Court learned Public Prosecutor stated that the evidence was already over and no witness was to be recalled or re summoned or to be called or examined even after alteration of the charge. Similarly learned counsel for the accused petitioner also stated that the petitioner does not intend to recall or re summon or examine any witness with regard to the altered charge. Thus no prejudice whatsoever has been shown to have been caused to the accused by the alteration modification of the charge. In view of the above the present petition lacks merit and is accordingly dismissed alongwith pending miscellaneous application(s) if any. Jyotsna Rewal Dua May 17 2021 Judge Mukesh 

Summary: While addressing a criminal revision petition regarding the addition of a charge, the high court held that under section 216 of the Code of criminal procedure the same can be done if there is no prejudice caused to the case of defense or prosecution. This judgment was passed in the case of Jitender Kumar vs. State of Himachal Pradesh [Cr. Revision No.114/2021] by a Single Bench consisting of Hon’ble Justice Jyotsna Rewal Dua. The petitioner aggrieved against the order of the learned Special Judge (Forests) for modifying the charge against him preferred the instant revision petition. The state had moved an application for the addition of charge under section 120B of IPC as well as for alteration of charge under section 13(1)(c) r/w section 13(2) of the Prevention of Corruption Act, 1988. The court had held that accused persons connived with each other to hatch conspiracy and misappropriate public funds. The petition was allowed to the extent that the charge for criminal misconduct under the prevention of corruption act was challenged. The petitioner contended that when the other co-accused were discharged, there was no point in framing a charge under section 120B against the petitioner. The petitioner further contended that The charges were framed on 11.4/8. 2014. the respondent filed for the addition/modification of charge 6 years after 2014 when the case was fixed for arguments. Thus, the application deserved to be dismissed. The High Court after hearing the parties and going through the documents observed that it is not a dispute that the trial court discharged the accused persons. When the state filed a criminal revision petition in 2014, the High Court dismissed the same. The High court observed that the contention of the petitioner had no point since the additional charge of section 120B was not agreed to by the trial Court. The high court dismissed the petitioner’s contention for the addition of charge since on the said date the petitioner was already charged under section 409 IPC and section 13(2) of the Prevention Of Corruption Act. Section 13(1)(c) of the said act merely laid out the ingredient of the offense. Furthermore, under 216 Cr.PC the alteration/modification of charge can be made by the court at any time before the judgment is made subject to the conditions laid under that section. The High Court held that since there was no prejudice to the Defence’s case or the prosecution’s and all the necessary evidence was over and no witness had to be recalled or re-summoned, there was no prejudice and the application for alteration of charge to the extent of section  13(1)(c) could be admitted. The High Court concluded by holding, “the present petition lacks merit and is accordingly dismissed along with the pending miscellaneous application(s) if any.”