IMPORTANT POINT
Charge can be altered or added on the basis of material brought on record provided no prejudice is caused to the accused and he gets a fair trial.

JUDGMENT :

Dipak Misra, J.

Despite completion of a decade from the date of solemnisation of the marriage and in spite of two off springs in the wedlock, neither the time nor the expansion of family nor the concern for the children could cement the bond or weld the affinity between the appellant-husband and the wife, the 2nd respondent herein, as a consequence of which she was compelled to set the criminal law in motion by lodging FIR No. 376 dated 23.11.2013 which was registered for the offences punishable under Section 498A/323/34 of the Indian Penal Code (IPC) against the husband and the mother-in-law alleging that the husband was insistent upon getting mutual divorce and on her resistance, he had physically assaulted her and deprived her of basic facilities of life. All these allegations had the foundation in demand of dowry and non-meeting of the same by the family members of wife. After due investigation, the prosecuting agency placed the charge-sheet against the husband alone for the offences punishable under Section 498A and 323 IPC before the learned Judicial Magistrate 1st Class, Gurgaon who eventually vide order dated 04.04.2009 framed charges against the husband for commission of the said offences.

2. When the matter was pending before the learned Magistrate, an application dated 31.07.2014 under Section 216 of the Code of Criminal Procedure (CrPC) was filed by the informant-wife for framing an additional charge under Section 406 IPC against the husband and mother-in-law, Renuka Sinha. It was stated in the said application that there was an express complaint with regard to misappropriation of the entire stridhan and other articles and hence, the accused persons had committed breach of trust, but no charge-sheet was filed in respect of the said offence. It was contended that in her statement recorded under Section 161 CrPC, she had categorically stated about misappropriation of the stridhan by the family members of her husband. The learned Magistrate took note of the materials, namely, stridhan list, complaint addressed to D.C.P. (East), Gurgaon, statements recorded under Section 161 CrPC and letter dated 16.11.2013 from Women Cell, D.C.P. (East), Gurgaon and came to hold that in view of the specific allegations regarding misappropriation of her entire stridhan by the husband and the other statements recorded during investigation, a prima facie case for criminal breach of trust was made out and, accordingly, allowed the application under Section 216 CrPC against the husband and the mother-in-law. Be it noted, a prayer had been made to add the charge for the offence under Section 120B IPC also but the same was not accepted by the learned Magistrate.

3. The order passed by the learned Magistrate came to be assailed in Criminal Revision No. 5 of 2015 before the learned Additional Sessions Judge, Gurgaon and it was contended in the revision that the mother-in-law was not charge-sheeted by the police but the trial court had directed to frame the charge against her and, therefore, the whole approach was erroneous. It was also urged that there was no material to make out a prima facie case under Section 406 IPC against the husband. The stand put forth by the revisionist was combatted by the prosecution as well as by the informant on the ground that the trial court has power to add or alter any charge under Section 216 CrPC and, therefore, no exception could be taken to the order passed by the learned Magistrate. The revisional court dwelt upon the law pertaining to alteration and addition of charges and came to hold that the framing of the charge against mother-in-law was unsustainable but the framing of additional charge under Section 406 IPC against the husband, the appellant herein, could not be faulted. Being of this view, the revisional court partly allowed the revision petition by setting aside the order of framing of charge against the mother-in-law.

4. The defensibility of the aforesaid order was called in question b