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KARNATAKA HIGH COURT
M. Nagaprasanna, J.
Ananda —Petitioner
versus
State of Karnataka by
Masthi Police Station and Anr. —Respondents
Criminal Petition No.1829 of 2022
Decided on 8.6.2022
(A) Criminal Procedure Code, 1973 – Section 216 – Alteration of charge – Power of alteration of charge, as found in Statute, can be exercised by any Court, before pronouncement of judgment, which would mean after the matter is reserved for its judgment charge can be altered – Usage of word ‘may’ only deploy judicial discretion to be exercised while altering charge – Submission that charge cannot be altered after trial has progressed to a large extent is rejected. (Para 9)
(B) Protection of Children from Sexual Offences Act, 2012 – Section 7 – Indian Penal Code, 1860 – Sections 366A, 506 and 34 – Criminal Procedure Code, 1973 – Section 482 – Kidnapping of girl child for marriage – Very fact that victim child has deposed in examination-in-chief and sustained the same in cross-examination would indicate that it is a matter for trial, as this Court cannot at this juncture consider as to what has transpired at the time when victim was carried to a particular place and statement of victim being that she was touched inappropriately in all places of her body – No fault can be found with order of concerned Court in allowing application filed by prosecution under Section 216 of Cr.P.C. seeking alteration of charge for addition of offence punishable under Section 7 of Act – Criminal Petition dismissed. (Paras 12, 13 and 14)
Result: Criminal Petition dismissed.
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 2
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