Point of Law: Criminal Conspiracy and Misappropriated public funds - Addition/Alteration of charge - Section 216 CrPC empower Court to alter or add any charge at any time before judgment is pronounced. It is now well settled that power vested in Court is exclusive to Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in framing of charge and if it comes to knowledge of Court trying offence, power is always vested in Court, as provided under Section 216 CrPC to either alter or add charge and that such power is available with Court at any time before judgment is pronounced.

JUDGMENT :

Jyotsna Rewal Dua, Judge (Oral)

Aggrieved against the order dated 18.08.2020 passed by the learned Special Judge (Forests), Shimla/Trial Court, modifying/altering the charge against the petitioner, instant revision petition has been preferred.

State moved an application for addition of charge under Section 120B of the Indian Penal Code (IPC) as well as for alteration of charge under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988. It was alleged that the accused persons had connived with each other to hatch a conspiracy and misappropriated public funds. This application was allowed by the learned Trial Court on 18.08.2020 to the extent that charge for offence of criminal misconduct under Section 13(1)(c) of the Prevention of Corruption Act was altered/modified. Aggrieved, the petitioner has challenged the aforesaid order.

2. Heard learned counsel for the parties and gone through the documents appended with the petition.

3. It is not in dispute that on 04.08.2014, learned Trial Court held that no case was made out against the accused persons, namely Sant Ram Shandil, Sant Ram Tanwar and Sher Singh Negi. These persons were discharged. Criminal Revision No.358 of 2014 filed by the State, challenging this order, has been dismissed by this Court on 23.09.2015. Learned counsel for the petitioner contends that when the other co-accused persons stood discharged, then there is no point for framing charge under Section 120B IPC against the petitioner. Primarily, aggrieved against the alleged framing of additional charge against the petitioner under Section 120B IPC, instant petition has been preferred. However, this contention is not required to be raised at all as the learned Trial Court has not at all agreed to add charge under Section 120B IPC against the sole accused, i.e. petitioner. The relevant observations of the learned Trial Court in this regard are as under:-

“…………………………. Since all the other accused aforementioned already stand discharged it is not appropriate at this stage to add charge under Section 120-B of IPC against sole accused Jitender. Therefore, this addition in charge in the considered opinion of this court cannot be made………………………………….”

In view of the observations of the learned Trial Court, there is no reason for the petitioner to feel aggrieved. The amended charge appended at page 17 of the petition also does not make any reference to Section 120B IPC.

4. Insofar as addition/alteration of charge under Section 13(1)(c) of the Prevention of Corruption Act is concerned, the objection of learned counsel for the petitioner is that the charges were framed on 11.4/8.2014. Almost six years thereafter, the application for addition/ alteration of charges has been made by the State at the stage when the matter was fixed for arguments. Such an application deserves to be dismissed. I am not inclined to accept this contention for the following reasons:-

(i). On 11.4/8.2014, the petitioner had already been charged for the offences under Section 409 IPC and Section 13(2) of the Prevention of Corruption Act. Section 13(1)(c) gives basic ingredients of the offence, i.e. “if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.”

(ii). Section 216 Cr.PC, which is relevant for alteration/modification of the charge, was recently considered by the Hon’ble Apex Court in (2020) 12 SCC 467, titled Dr. Nallapareddy Sridhar Reddy Versus State of Andhra Pradesh and others, wherein the appellant therein was charged only for offences under Section 498A IPC alongwith Sections 3 and 4 of the Dowry Prohibition Act. In an application moved by the State under Section 216 Cr.PC for addition of charges under Sections 406 and 420 IPC, it was observed as under:-

“15. In order to adjudicate upon the dispute, it is necessary to refer to Section 216 of CrPC:

“216. Court may alter cha