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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Hrishikesh Sarkar – Petitioner
Versus
The State of West Bengal and Another – Respondents
CRR No. 734 of 2019
Decided On : 30-06-2023
CRIMINAL LAW - SECTION 6 OF THE POCSO ACT, 2002 - ADDITIONAL CHARGE - FRAMING OF - VALIDITY - COURT'S POWER UNDER SECTION 216 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SCOPE AND EXTENT - JUDICIAL DISCRETION - PREJUDICE TO ACCUSED - RELEVANCE OF MATERIALS ON RECORD - TEST.
Fact of the Case:
The petitioner challenged the framing of an additional charge under Section 6 of the POCSO Act, 2002, along with the original charges under Sections 376 and 493 of the Indian Penal Code, in a case involving an alleged love affair and sexual relationship between the petitioner and the victim. The petitioner argued that the trial court erred in framing the additional charge without finding any defect in the original charge and that the court's power under Section 216 of the CrPC was not applicable.
Finding of the Court:
The court held that the trial court's order framing the additional charge under Section 6 of the POCSO Act was valid and in accordance with law. The court noted that Section 216 of the CrPC empowers the court to alter or add to any charge at any time before judgment is pronounced, and that this power is exclusive to the court and cannot be exercised as a matter of right by any party. The court further held that the trial court had the jurisdiction to add the charge based on the materials brought on record during the course of the trial, and that the court had exercised its discretion judiciously without causing any prejudice to the accused.
Issues: 1. Whether the trial court erred in framing an additional charge under Section 6 of the POCSO Act without finding any defect in the original charge. 2. Whether the trial court's power under Section 216 of the CrPC was applicable in the present case.
Ratio Decidendi: 1. The court held that the trial court did not err in framing the additional charge under Section 6 of the POCSO Act without finding any defect in the original charge. The court noted that Section 216 of the CrPC empowers the court to alter or add to any charge at any time before judgment is pronounced, and that this power is exclusive to the court and cannot be exercised as a matter of right by any party. 2. The court further held that the trial court had the jurisdiction to add the charge based on the materials brought on record during the course of the trial, and that the court had exercised its discretion judiciously without causing any prejudice to the accused.
Final Decision: The court dismissed the petitioner's revision application and affirmed the trial court's order framing the additional charge under Section 6 of the POCSO Act.
JUDGMENT :
SHAMPA DUTT (PAUL), J.
1. The present revision has been preferred against an order dated 15.02.2019 passed by the Learned Additional Sessions Judge, 2nd Court-cum-Special Judge under POCSO Act, Darjeeling, whereby additional charge under Section 6 of the POCSO Act, 2002 was framed against the present petitioner with the original charges framed on 30.10.2017 under Sections 493/376 of the Indian Penal Code in connection with the Spl. (C) No. 113 of 2015 arising out of Naxalbari P.S. Case No. 237/2013 dated 11.11.2013.
2. The petitioner’s case is that on the basis of a written complaint dated 11.11.2013 lodged by one Debasri Roy, Naxalbari Police Station Case No. 237/2013 under Sections 493/376 of the Indian Penal Code has been commenced against the petitioner, alleging inter-alia:
3. On the basis of the aforesaid written complaint a FIR was drawn up against the present petitioner and investigation conducted. After completion of investigation, the police submitted charge sheet being no. 55/2014 dated 31.03.2014 under Sections 376/493 of the Indian Penal Code, 1860 against the present petitioner.
4. After taking cognizance of the alleged offences the case record was committed to the Court of Sessions at Darjeeling and then transferred to the Court of Learned Additional Sessions Judge, 2nd Court-cum-Special Judge under POCSO Act, Darjeeling for disposal and was registered as Spl. (C) No. 113/2015 on 14.12.2015.
5. On 30.10.2017 which was the date fixed for framing of charge, the prosecution after careful consideration and deliberation of all the alleged materials, evidences proposed to frame charges under Sections 493/376 of the Indian Penal Code against the present petitioner/accused person and the Learned Trial Judge also after perusing the alleged materials, evidences contained in the case diary, was pleased to frame charges under Sections 493/376 of the Indian Penal Code against the present petitioner and was further pleased to fix 06.02.2018 for appearance and evidence of the prosecution witnesses.
6. Subsequently the Learned Presiding Judge was transferred and in his place the present Presiding Judge was appointed and on 27.11.2018, when the alleged victim lady (C.S.W.-1) was supposed to be examined, one application was filed by the Learned Public Prosecutor with a prayer for framing additional charge under Section 6 of the POCSO Act along with the original charges framed under Sections 376/493 of the Indian Penal Code against the present accused person/petitioner.
7. On 15.02.2019, the Learned Trial Judge upon hearing both sides was pleased to frame additional charge under Section 6 of the POCSO Act, 2012 along with the original charges under Sections 376/493 of the Indian Penal Code against the present petitioner and since the petitioner pleaded ‘not guilty’ hence the Learned Judge was further pleased to fix 12.03.2019 as the date for recording evidence of the alleged victim girl.
8. The petitioner states that according to Section 226 of the Code of Criminal Procedure when an accused is brought before the Court of Sessions after commitment, it is the prosecutor who upon making careful scrutiny of the charge sheet and other materials collected during investigation proposes to prove the guilt of the accused against particular criminal charges.
9. That the legislature has cast an incumbent duty upon the Learned Trial Court to consider the record of the case and the documents submitted therewith, along with the submission
The power to alter the charge under Section 216 Cr.P.C. is exclusive to the Court and can be exercised at any time before the judgment is pronounced. The alteration must be founded on material availa....
The Court upheld its power under Section 216 of the CrPC to add charges upon prosecution request, emphasizing the trial's necessity and the end of justice.
The High Court's revisional jurisdiction limits intervention in Trial Court decisions unless there is a clear error or injustice, especially regarding the framing of charges under the Criminal Proced....
The court established that it can alter charges under Section 216 CrPC based on evidence, ensuring no prejudice to the accused, even after the trial has commenced.
Alteration of charge – Charge can be altered even after trial has progressed to a large extent.
The main legal point established in the judgment is the application of Section 216 of the Cr.P.C. and the court's power to alter or add charges at any time before the judgment is pronounced, ensuring....
The trial Court can alter charges under Section 216 CrPC, and such alteration does not equate to deletion, allowing the trial to proceed under the new charge.
The wide power of the court under Section 216 Cr.P.C. to alter charges at any stage before judgment and the duty of the public prosecutor to apprise the court of any defect in framing charges.
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