IMPORTANT POINTS
(1) Alteration of charge – At the stage of exercising jurisdiction under Section 216 Cr.P.C., trial court must satisfy : itself that there exists convincing material and grounds to alter existing charge.
(2) Order altering charge is revisable and ordinarily, petition under Section 482 Cr.P.C., cannot be entertained in view of availability of alternatively statutory remedy.

JUDGMENT

Manoj Bajaj, J.—Applicants-Accused have filed this application under Section 482 Code of Criminal Procedure to challenge the order dated 05.12.2023 passed by Special Judge (POCSO Act)/Additional Sessions Judge, court no.8, Ballia in S.S.T. No.391 of 2018, titled State Vs. Arun @ Arun Kumar and others, arising out of case crime no.130 of 2018, under Sections 363, 366, 376, 504, 506 IPC and Section 3/4 of POCSO Act, Police Station Gadwar, District Ballia, whereby the application dated 13.09.2021 filed by the prosecution seeking alteration of charge has been allowed.

2. Learned counsel submits that the subject case was registered on the basis of the complaint given by Govind Kumar, wherein it was reported that his daughter has been enticed away by the accused persons, namely, Arun Kumar, Ranjeet, Krishna, Shanker, Ravishanker etc. He submits that after registration of the case, the investigation was carried out and the final report was filed on 13.10.2018, thereby sending the accused- Arun Kumar to face trial for the alleged commission of offence punishable under Sections 376 IPC etc., whereas the rest of the accused persons (applicants) were forwarded to face trial only for offences punishable under Sections 504, 506 IPC.

3. Learned counsel submits that the trial court upon considering the final report proceeded to frame the charges against the accused persons vide order dated 23rd October, 2019, and while referring to the said order, he highlighted that the accused applicants were charged only for the alleged commission of offences punishable under Sections 504, 506 IPC. Learned counsel has pointed out that after framing of charges, the prosecution examined its witnesses and after recording the deposition of victim, an application dated 13th September, 2021 (Annexure No.9) was moved seeking alteration of the charges and the same has been allowed by the trial court vide impugned order dated 5th December, 2023.

4. Learned counsel refers to the statement of victim under Section 161 Cr.P.C. and submitted that the charges initially were rightly framed as the names of the applicants were not mentioned, and attribution of the alleged commission of offence of rape is against accused- Arun Kumar. Learned counsel has vehemently argued that the power under Section 216 Cr.P.C. vested with the trial court cannot be exercised at least by moving an application by the complainant, and the charge can only be altered suo moto by the court. In support of his submissions, he has placed reliance on the decision of the Supreme Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and another, 2017 (3) SCC 347. According to him, the deposition of the victim recorded during trial is in contradiction to her statement under Section 161 Cr.P.C., therefore, the impugned order is not sustainable in the eyes of law. He prays that the impugned order be set aside.

5. Learned counsel has been heard, and with his assistance, the case file has been perused.

6. Before adverting to the merits of the case, this Court deems it appropriate to examine Section 216 Cr.P.C., which reads as under:—

“216. Court may alter charge:—(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) 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.

(4) 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 necessar