IMPORTANT POINT
The court's decision was influenced by the application of Section 216 Cr.P.C. and the testimony of the prosecutrix in adding charges to the case.

JUDGMENT :

1. Heard Sri Bhup Chandra Singh, learned counsel for the petitioner and Sri Aniruddha Kumar Singh, learned Additional Government Advocate-I for the State.

2. In view of the order proposed to be passed, the notices to opposite party Nos.3 and 4 are hereby dispensed with.

3. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed for quashing/ setting aside the order dated 11.01.2024 passed in S.T. No.54 of 2021 (State vs. Avdhesh) by the learned Special Judge, POCSO Act, / Additional Sessions Judge, Room No.12, Sultanpur relating to Case Crime No.136 of 2019, under Sections 363 & 366 I.P.C. and Section 16/17 of POCSO Act, Police Station-Kamrauli, District-Amethi, so far as it relates to the present petitioner, as well as the entire criminal proceedings pending against the petitioner may kindly be terminated.

4. Attention has been drawn towards Annexure No.2 of the petition which is F.I.R. registered against the petitioner bearing Case Crime No.136 of 2019, under Sections 363 & 366 I.P.C. and Section 16/17 of POCSO Act, Police Station-Kamrauli, District-Amethi and the petitioner has been granted bail in the aforesaid case crime number. Thereafter, the investigation was completed and the charge-sheet was filed under those sections but during the course of trial, the prosecution has filed an application before the court after examination of the testimony of the prosecutrix to the effect that on the basis of such testimony section 3/4 of Protection of Children from Sexual Offences Act (POCSO) and Section 376 I.P.C. should be added. However, objection has been filed on behalf of the petitioner to the effect that earlier the prosecutrix has not supported the prosecution version while recording her statement under Sections 161 Cr.P.C. & 164 Cr.P.C. and authenticity of those statements may not be ignored.

5. Learned counsel for the petitioner has drawn attention of this court towards the dictum of Apex Court rendered in the case in re: P. Kartikalakshmi vs. Sri Ganesh and another reported in (2017) 3 SCC 347 wherein the Apex Court has observed that the powers of Section 216 Cr.P.C. may not be invoked on the application of the prosecution or the defence but the court while invoking powers under Section 216 Cr.P.C. should apply its judicious mind and must consider the relevant facts, circumstances and evidences available on record. Therefore, the impugned order dated 11.01.2024 whereby the court added Sections 376 I.P.C. and 3/4 of POCSO Act on the application of the prosecution filed under Section 216 Cr.P.C. The Apex Court in the case in re: P. Kartikalakshmi (supra) in paras-6, 7 & 8 held as under:-

"6. Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent 1. Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the 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 the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

7. We were taken through