IMPORTANT POINT
The power to alter or add charges under Section 216 of the Cr.P.C. is exclusive to the court and cannot be sought by any party as a matter of right.

JUDGMENT :

(Partha Sarthy, J.) :

1. Heard learned counsel for the petitioner, learned APP for the State and learned counsel for the opposite party no.

2.

2. The petitioner has filed the instant application praying for quashing the order dated 2.5.2023 passed in Sessions Trial no. 435 of 2010 (arising out of Riga P.S. Case no. 187 of 2009) whereby the learned Additional District and Sessions Judge-II, Sitamarhi was pleased to allow the petition dated 12.1.2023 filed on behalf of prosecution praying for alteration of the charge against the petitioner from section 306 of the Indian Penal Code to section 304B and 201 of the Indian Penal Code.

3. Learned counsel for the petitioner submits that the petitioner was implicated in an F.I.R being Riga P.S. Case no. 187 of 2009 registered under sections 304B, 201 and 34 of the Indian Penal Code. It is submitted here that after investigation charge-sheet was submitted on 30.4.2010 under section 306 of the Indian Penal Code and cognizance was taken on 30.6.2010. Both the parties were heard by the learned trial Court on the point of framing of charge and finally by order dated 14.10.2011 charge was framed against the petitioner under section 306 of the Indian Penal Code. The trial commenced in altogether six witnesses were examined in between 13.2.2012 and 3.8.2019.

4. Learned counsel for the petitioner further submits that though the order dated 14.10.2011 framing charge against the petitioner under section 306 of the Indian Penal Code was not challenged by the prosecution, the prosecution filed a petition on 12.1.2023 under section 216 of the Cr.P.C stating therein that charge be altered from one under section 306 of the Indian Penal Code to that under section 304B and 201 of the Indian Penal Code. Rejoinder was filed on behalf of petitioner on 30.1.2023. Having heard learned counsel for the parties, the learned trial Court by its order dated 2.5.2023 was pleased to allow the petition filed on behalf of the prosecution for alteration of charge and the charges were altered from one under section 306 of the Indian Penal Code to that under sections 304B and 201 of the Indian Penal Code. It is submitted that the order impugned having been passed on a petition filed on behalf of the prosecution is in teeth of judgment of the Hon’ble Supreme Court in case of P. Kartika Lakshmi vs. Sri. Ganesh & Others [(2017) 3 SCC 347], is unsustainable and therefore, the same be set aside.

5. The application is opposed by learned APP for the State and also learned counsel for the opposite party no. 2. It is submitted by learned counsel appearing for the opposite party no. 2 that so far as the application filed on behalf of prosecution is concerned, the same is not under section 216 of the Cr.P.C. It is submitted that power to alter charge is available to the learned trial Court under section 216 of the Cr.P.C. Further reliance is placed by learned counsel for the opposite party no. 2 on judgment of the Hon’ble Supreme Court in the case of Anant Prakash Sinha @ Anant Sinha vs. State of Haryana & Another [AIR 2016 SC 1197] and more particularly paragraph no. 6 thereof.

6. Having heard learned counsel for the parties and having perused the material on record, it transpires that the facts not in dispute herein are that the F.I.R of Riga P.S. Case no. 187 of 2009 from which the instant application arises was registered on 26.12.2009 under sections 304B, 201 and 34 of the Indian Penal Code. Charge-sheet was submitted under section 306 of the Indian Penal Code. After taking cognizance finally charge was framed in the learned trial Court on 20.5.2011 under section 306 of the Indian Penal Code. It was on the application filed on behalf of prosecution on 12.1.2023 (Annexure-P/3) that the same has been allowed and the order impugned has been passed altering the charge against the petitioner in the trial. The provision of alteration of charge is provided under section 216 of the Cr.P.C which provides that any Court may alt