ORDER :

The petitioner/accused No.1 in S.C.No.227 of 2018 has knocked the doors of this Court in the subject petition calling in question order dated 31-12-2021 by which the II Additional District and Sessions Judge, Kolar has added a charge under Section 7 of the POCSO Act (‘the Act’ for short) apart from the allegations which were initially levelled and punishable under Sections 366A, 506 and 34 of the IPC.

2. Heard Sri T.A.Basavaraju, learned counsel appearing for the petitioner and Sri K.S.Abhijith, learned High Court Government Pleader for the 1st respondent.

3. The facts, necessary for consideration of the subject lis, are as follows:

A complaint came to be registered on 01-12-2016 on an allegation that when the victim was going to the school at Masthi, the petitioner is said to have asked her to sit on the bike to drop her at the school. The victim sits on the bike and they reached Masthi Dinne where accused 2 and 3 along with accused No.1 kidnapped and taken the victim to Halasumaranadoddi. The purpose of such kidnap was to get her married to accused No.4. The complaint further narrates that she escaped from the clutches of the accused and contacted the complainant and her relatives. Thereafter, a complaint came to be registered against all the accused including the petitioner for offences punishable under Sections 366A, 506 and 34 of the IPC. The crime came to be registered on 06-12-2016 for an incident that had happened on 01-12-2016.

4. The issue in the case at hand is not with regard to merits of the matter. What drives the petitioner to this Court at this juncture is an order passed by the learned Sessions Judge altering the charge invoking his power under Section 216 of the Cr.P.C. on an application being made by the prosecution seeking alteration of the charge and inclusion of offence punishable under the Act. The application was filed by the prosecution on 25.01.2021 on account of certain statements recorded during the trial before the learned Sessions Judge. The petitioner and others filed their objections for alteration of the charge. The learned Sessions Judge by his order dated 31-12-2021 allows the application permitting amendment of the charge for inclusion of Section 7 of the Act.

5. The learned counsel appearing for the petitioner submits that the very order passed by the learned Sessions Judge is contrary to law as the charge is altered after three years of commencement of trial which could not have been done and for such alteration of charge there was no evidence but merely on the statement of the victim which does not touch upon the offence punishable under Section 7 of the Act, the charge that is added casts grave prejudice to the petitioner. He would submit that the victim was taken only to get her married to accused No.4 and nobody has indulged in any act that would become offence punishable under the Act.

6. On the other hand, the learned High Court Government Pleader would seek to justify the order and submits that the charge can be altered by the learned Sessions Judge at any time and alteration of charge now made does indicate the offence punishable under the Act. He seeks dismissal of the petition.

7. I have given my anxious consideration to the submissions of the respective learned counsel and perused the material on record. In furtherance whereof, the issues that fall for my consideration are:

(i) Whether the charge can be altered under Section 216 of the Cr.P.C. after commencement of trial and recording of evidence of several witnesses? and

(ii) Whether the order directing alteration of the charge warrants interference?

Issue No.1:

(i) Whether the charge can be altered under Section 216 of the Cr.P.C. after commencement of trial and recording of evidence of several witnesses?

8. To consider the issue whether the Court would be well within its jurisdiction to alter the charge at any stage of the proceedings, it is germane to notice source of power for such alteration. Section 216 of the Cr.P.C. reads