THE HONOURABLE SMT JUSTICE JUVVADI SRIDEVI CRIMINAL PETITION No.1631 OF 2023

O R D E R

This Criminal Petition is filed by the petitioners-accused Nos.2, 4 to 8 seeking to quash the impugned Order dated 15.02.2022 in Criminal Revision Petition No.177 of 2018 passed by the learned Metropolitan Sessions Judge, Hyderabad (for short ‘the learned Sessions Judge’), confirming the Orders dated 28.03.2018 in Criminal Miscellaneous Petition No.384 of 2018 in C.C.No.216 of 2011 passed by the learned XIII Additional Chief Metropolitan Magistrate, Mahila Court, Hyderabad (for short ‘the learned trial Court’) wherein the application filed by the prosecution under Section 216 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) was allowed adding the offence under Section

307 of the Indian Penal Code (for short ‘IPC’).

02. Heard Sri Srinivas Dammalapati, learned Senior Counsel representing Sri Aruva Raghuram Mahadev, learned counsel for the petitioners and Smt.S.Madhavi, learned Assistant Public Prosecutor for the State-respondent.

Perused the record.

03. Learned Senior Counsel appearing for the petitioners submitted that both the Courts had not satisfied with regard to the required ingredients of any of the alleged offences. Further, both the Courts had failed to appreciate the facts and circumstances of the case in a proper manner and passed the impugned Orders. The certificate of the Doctor marked as Ex.P7 do not disclose any injury, which may lead to the death of the victim. Both the Courts miserably failed to consider the fact that the entire trial was completed and the prosecution cannot file an application under Section 216 of Cr.P.C. The power conferred upon the Court under Section 216 of the Cr.P.C. is discretionary and exclusive, and shall not be invoked at the instance of either party by way of an application. Hence, while seeking for quashment of the impugned Order, he relied upon a decision of the Honourable Supreme Court in P.Kartikalakshmi v. Sri Ganesh and another, (2017) 3 Supreme Court Cases 347 wherein at Paragraph Nos.6 and 7 it was held that:

“6. Having heard learned counsel for the respective parties, we find force in the submission of learned senior counsel for respondent no.1. Section 216 Cr.P.C.

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 Cr.P.C. 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 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 Sections 221 & 222 of the Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 Cr.P.C. is exclusively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make i