Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally.

2. This revision under Sections 397 and 401 of the Code of Criminal Procedure is against the order dated 21.06.2023 passed by the Court of First Additional Sessions Judge, Amarpatan, District Satna, whereby the trial Court in a pending trial allowing the application of the victim/complainant filed under Section 216 of the CrPC has added the offence under Section 307 of the Indian Penal Code against the applicants.

3. Learned counsel for the applicants is assailing the impugned order mainly on two counts; firstly, that application preferred by the victim/complainant under Section 216 of the CrPC was not maintainable and it could have been rejected on that count alone and secondly, that since charge has already been framed by the trial Court and at the time of framing of charge, offence under Section 307 of the IPC was not added, but later on, by the impugned order, it got added that too on the basis of same material and circumstances, which amounts to review of its own order by the trial Court which is impermissible under the law. He submits that from the impugned order, it is clear that the trial Court has not assigned any reason as to what compelled the Court to add the offence under Section 307 in addition to the offence for which charge has already been framed. Learned counsel for the applicants submits that since the order of framing of charge is finally passed, therefore, it cannot be altered or reviewed by the trial Court as per the provisions of Section 362 of the CrPC.

4. Learned counsel for the applicants further submits that against the order of framing of charge, a revision was filed before this Court under 3 Section 397 of the CrPC requesting therein that apart from the charge framed by the Court, an offence under Section 307 of the IPC was also required to be added as the trial Court had committed mistake and not framed the said offence, but that revision was later on withdrawn. However, during pendency of that revision, an application was filed by the victim/complainant under Section 216 of the CrPC before the trial Court wherein the impugned order has been passed. He submits that application filed by the victim/complainant was otherwise barred under sub-section (3) of Section 397 of CrPC and on this count also, the impugned order is liable to be set aside. In support of his contention, he relies upon an order of Supreme Court reported in ( 2017) 3 SCC 347 [P. Kartikalashmi Vs. Sri Ganesh and another ] wherein it has been observed by the Supreme Court that the complainant/victim has no right to move an application under Section 216 of the CrPC for altering the charge already framed.

5. On the other hand, learned counsel for the respondent/complainant has opposed the submissions advanced by learned counsel for the applicants and submitted that the trial Court has ample power to alter the charge already framed. He has submitted that during pendency of trial, if the trial Court is of the opinion that the offence is required to be added against the accused persons, then the trial Court can do so and it cannot be said to be illegal. He has submitted that merely because an application under Section 216 of the CrPC had been filed by the victim and after considering the same, the Court was of the opinion that offence under Section 307 of the IPC was required to be added and if the Court did so, then the view of the Court cannot be turned down only because the application had been moved by the victim whereas the basic object of the Court was to be seen. According to him, the nature of crime 4 clearly indicates that the accused persons had a clear intention of murder and as such, offence under Section 307 of the IPC was required to be added. He has submitted that initially, the police registered the offence under Section 307 of the IPC, but at the time of filing the challan, the said offence was removed. He has submitted that the Court was not required to assign any reason for framing the additional charge against the accused because that was not the requirement of law. He has submitted that the Supreme Court on various occasions has observed that while framing the charge, the Court has to see the material available before it, but no reason is required to be assigned by the Court with regard to framing the charge of a particular offence. He has submitted that in view of direction given by this Court while disposing of the writ petition filed by the respondent/complainant, she had moved the application before the trial Court on which the impugned order has been passed which according to him is nothing but in pursuance to the direction given by this Court and, therefore, it cannot be said to be illegal. To bolster his submissions, learned counsel for the respondent/complainant has placed reliance upon several decision viz. ( 1983) 2 SCC 28 [State of Maharashtra Vs. Balram Bama Patil and others ], ( 2000) 1 SCC 722 [Kanti Bhadra Shah and another Vs. The State of West Bengal ], (2014) 13 SCC 137 [Dinesh Tiwari Vs. State of Uttar Pradesh], Criminal Appeal No.632 of 2022 [ Jagjeet Singh and others Vs. Ashish Mishra @ Monu and another ], Criminal Appeal No.1820 of 2019 [Bhawna Bai Vs. Ghanshyam and others], Criminal Appeal No.1316 of 2021 [Sadakat Kotwar and another Vs. The State of Jharkhand], Criminal Appeal No.1934 of 2019 [ Dr. Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh and others ] and also of Allahabad High Court passed in Application u/S 482 No.19093 of 2020 [Rekha and others Vs. State 5 of U.P. and another ].

6. I have heard the rival submissions advanced by learned counsel for the parties and perused the record.

7. Though, the trial Court has passed the impugned on an application of the respondent/complainant filed under Section 216 of the CrPC, but the respective provision does not empower the trial Court to entertain the application of any of the parties and as such, I find force in the submission made by learned counsel for the applicants in saying that the application moved by the respondent/complainant ought to have been rejected by the trial Court as it was not tenable. However, the respondent/complainant had filed a petition before this Court i.e. W.P. No.9164 of 2022 challenging the conduct of the Investigating Officer saying that initially offence was registered against the accused persons under Section 307 of the IPC, but at the time of filing the challan, the said offence got removed from the challan, therefore, the direction was sought for the Investigating Agency to do fair investigation in the matter and in turn, that petition got disposed of by this Court saying that since the challan has already been filed, therefore, the petitioner (respondent/complainant herein) can raise their grievance before the trial Court which shall consider the same, but that direction does not mean that the trial Court could exercise the power which has not been provided to it by the statute itself. Although, the Court has ample power to add any of the offences during trial, if the Court finds fit to add the additional offence considering the material available before it, but it does not mean that the application which is otherwise not maintainable could be entertained by the Court.

8. At the time of framing the charge when the offence under 6 Section 307 of the IPC was not added then in that situation, the complainant could make a request before the trial Court for adding the offence under Section 307 of the IPC, but that was not done and, thereafter, a revision under Section 397 of the CrPC was filed by the respondent/complainant before this Court for adding the offence under Section 307 of the IPC, but later on, it got withdrawn that too without there being any liberty. Sub-section (3) of Section 397 of the CrPC puts a bar upon the parties for not repeating any such application if the same has already been made either to the High Court or to the Sessions Court, but that provision is not applicable here in this case because it otherwise restricts the parties from filing second revision under Section 397 of the CrPC. However, I am of the opinion that at a subsequent stage, if the Court came to conclusion for adding the additional charge, then it was obligatory for the Court to ascribe the reasons as to what compelled it to add the offence, but in the present case, the Court has not disclosed any reason and only relying upon the law laid down in the case i.e. 2022 (3) Crimes 160 [Gulam Hassan Beg Vs. Mohammad Makbool and others] has passed the impugned order, however, the said case has no application in the existing facts of the case.

9. In absence of assigning any specific reason for framing the additional charge that too on the application filed by the respondent/complainant under Section 216 of the CrPC which was otherwise not maintainable, the order passed by the trial Court, in my opinion, is not sustainable in the eyes of law for the reason that it is cryptic and vulnerable not disclosing the reason as to why the trial Court was of the opinion to add the additional offence under Section 307 of the IPC. So far as the submission made by learned counsel for the 7 respondent/complainant that at the time of framing the charge the Court is not required to assign any reason is concerned, it will not help him here in the existng circumstances for the reason that the impugned order has not been passed by the trial Court at the time of framing the charge whereas it has been passed on an application filed by the respondent/complainant by exercising the powers provided under Section 216 of the CrPC. The very purpose of Section 216 of the CrPC and language used therein reads as under:-

However, the aforesaid provision clearly caste an obligation upon the Court for assigning reasons or to give an opportunity to the accused to know as to why the Court is adding the additional charge, but since that obligation has not been discharged by the trial Court, therefore, in my opinion, the impugned order passed by the trial Court on 21.06.2023 is liable to be set aside and it is hereby set aside.

10. In light of forgoing discussion, the revision filed by the applicants stands allowed.

(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2023.08.24 10:55:18 +05'30'