IMPORTANT POINT
Alteration of charge – Jurisdiction of Section 216 Cr.P.C. cannot be exercised on application made by any of parties but on its own satisfaction.

JUDGMENT

The present petition has been filed by the petitioners under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the order dated 21-08-2024 passed by learned Ist Additional Sessions Judge, Mahasamund, in Sessions Case No. 52/2022, whereby the learned trial court has allowed the application filed by the prosecution under Section 216 of Cr.P.C. and framed the additional charge of Section 333 of the IPC.

2. Brief facts of the case are that on 19-03-2022 a quarrel took place between the petitioners and the deceased, who was a sub-inspector of police and he ultimately died. The offence under Sections 147, 149 and 302 of IPC was registered bearing Crime No.134/2022 and charge sheet was filed against the petitioners. The petitioners are accused persons in the said offence. The petitioner No. 5 is granted bail by the Hon’ble Supreme Court vide order dated 08-01-2024. The prosecution witnesses were examined, the statement of accused were recorded and after hearing the parties, the case was fixed for passing judgement on 21-08-2024.

3. On 14-08-2024, the prosecution filed an application under Section 216 of the Code of Criminal Procedure, 1973, for framing of the additional charge of Section 333 of IPC. It is avered by the prosecution in the application that the deceased, Vikas Sharma, was on patrolling duty on the date of the incident, and he was discharging his duty. P.W. 6 Akash Sharma has deposed in para 4 of his evidence that the deceased, Vikas Sharma, was on duty at the time of the incident. Further, the witnesses P.W. 2 Durgesh Kumar Kannauje, P.W. 7 Lal Vijay and P.W. 16 Ashish Verma have stated in their evidence that the accused persons have assaulted the deceased by hand and fist and the said evidence is supported by the evidence of Dr. I. Nageshwar Rao, P.W. 12. It is also avered in the application that the deceased, who was on official duty, was being assaulted by the accused persons and therefore, the offence of Section 333 IPC prima facie appears to be made out against the accused persons. It is also avered that the court has the power to alter or frame the new charge at any time before pronouncement of judgment based on the material available on the record during the trial. Therefore, the additional charge of the offence of Section 333 IPC be framed against the accused persons.

4. Some of the accused persons have filed reply to the application of the prosecution, and after hearing the parties, on 21-08-2024, the learned trial court allowed the application filed by the prosecution under Section 216 of Cr.P.C. and framed the charge of Section 333 of IPC. The order dated 21-08-2024 is under challenge in the present petition.

5. Learned counsel for the petitioners has submitted that the prosecution has no right to file an application for alteration or modification of the charge. It is upon the court to consider the evidence independently as to whether the charge framed earlier is required to be altered or any new charge is to be framed or not in view of evidence came on record. She would also submit that the trial court has ample power to alter, amend or add the charge before the pronouncement of judgment, but not on the basis of the application filed by the parties. She would also submit that from the evidence of I. Nageshwar Rao, P.W. 12, it is clearly established that deceased died due to heart attack/failure but not from the injuries allegedly caused by the accused persons. Therefore, prima facie there is no material available on record for framing of additional charge under Section 333 of IPC. Therefore, the impugned order dated 21-08-2024 be set aside.

6. On the other hand, learned counsel for the State supported the impugned order and has submitted that the learned trial court has rightly exercised its jurisdiction provided under Section 216 of Cr.P.C. and has framed the additional charge of Section 333 of IPC. There is sufficient material available on record for framing of the additional charg