The Allahabad High Court has while dismissing the petition said that the trial court in exercise of its powers under Section 216 Cr.P.C cannot delete the charges framed by it for the offences as the criminal procedure code does not confer such powers on the court. The trial court can only alter a charge or to add to a charge, which has already been framed.
A Single Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a Criminal Revision filed by Dev Narain.
The criminal revision has been preferred against the order dated 30.1.2023, passed by the Additional District and Sessions Judge (FTC), Chitrakoot in Sessions trial, arising out of Case under Sections 498-A, 304-B, 323 IPC & 3/4 of D.P Act, 1961, Police Station Karwi Kotwali Nagar, District Chitrakoot, whereby the court below rejected the application 29-Kha moved under Section 216 Cr.P.C by the revisionist for alteration of charges framed against him.
The facts of the case are that in case FIR was lodged at the instance of opposite party No 2 Vibhuti Bhushan Garg with averment that his sister Rashmi was married to Kamal Kishore @ Satyanarayan on 22.2.2016, in which they have given sufficient cash and gifts to accused side but nonetheless the husband of his sister and his family members kept on demanding a four wheeler and washing machine and due to non-fulfilment of demand of dowry, they were subjecting her to cruelty and also would threaten her.
Prior to four days of lodging of FIR, he visited the place of in-laws of his sister and her husband and her in-laws again made demand of dowry and refused to send her with him without fulfilling the demand of dowry.
He went back home and apprised his father by telephone about the act of the accused persons. On 25.5.2016, Narayan, who is the elder brother of the husband of his sister, informed him that the house of his sister was locked from the outside. He rushed to the place and got the lock broken in presence of police and found the dead body of his sister and there were injuries on her person.
In the FIR, the husband, Sri Narain (jeth), Dev Narain (dewar) and three relatives of her husband were named. The post mortem examination of the deceased was conducted on 26.5.2016, in which six antemortem injuries were found on her person and cause of death was found by the Doctor as coma and shock due to antemortem injuries. The death was instantaneous. Satya Narain, the husband of the deceased was found missing from the date of incident and subsequently, it was known that his dead body was found between railway tracks. A Nokia mobile phone (twin SIM) was also recovered near the dead body and when Sub-Inspector inserted SIM in his own mobile phone and dialled a number, one Ashok Kumar Dwivedi replied the call and stated that the said number belongs to his brother-in-law (wife’s brother) Satya Narain, who came and identified the body of Satya Narain.
The police investigated the case and filed a charge-sheet against revisionists and the name of other accused persons barring deceased Satya Narain was dropped during investigation, as their complicity was not found in the offence of dowry death of deceased Rashmi. Accused Dev Narain, who is brother-in-law of the deceased moved an application for discharge before trial court, which was rejected by order dated 28.7.2017 and case was fixed for prosecution evidence. The accused Dev Narain, who filed a petition under Section 482 Cr.P.C against rejection of his discharge application before the Court, which was dismissed by the Court with observation that “it is open to the applicant to move an application for alteration of charge under Section 216 Cr.P.C before trial court”.
The Court noted that,
On the basis of evidence collected during the investigation. It appears that the deceased Rashmi and her husband were residing in separate houses and he was working in railway and they used to quarrel on some issue. The key of the house where the dead body of the deceased was lying was recovered from the pocket of clothes worn by Kamal Kishore on recovery of his dead body. The deceased and her husband were residing separately from the revisionist and other family members and they were not concerned with daily affairs of each other. The revisionist could not be a beneficiary of any demand of dowry allegedly made by the husband of the deceased from the deceased and her family members. There is no evidence that she was subjected to matrimonial cruelty soon or before her death. The ingredients of charges under Sections 498-A, 304-B and 323 IPC and Section 3/4 DP Act are not made out against the applicant. Therefore, the said charges are liable to be quashed and the applicant may be discharged from the charges. The application has been dismissed by the court below.
Counsel for the revisionist while placing reliance on grounds taken in application under Section 216 Cr.P.C moved before the court below submitted that there is no evidence or material against the revisionist which can suggest that he as in any manner involved in unfortunate death of deceased Rashmi, who was sister-in-law and married to his late brother Satya Narain. The circumstances suggests that some altercation might have taken place between the husband and wife on fateful day and they would have been involved in some altercation and she might have received fatal injuries in the altercation and thereafter in disgust and guilt, her husband would have locked the door of the house from outside and committed suicide by being run over by a train. Therefore, the revisionist is not involved in the death of the deceased in any manner.
The charges framed against the revisionist are frivolous in nature and should have been dropped by the court below but the court below has dismissed the application moved by the revisionist under Section 216 Cr.P.C. without assigning any good reason. Therefore, the impugned order is not sustainable under law and this is liable to be set aside.
The Court observed that the Court may alter or add to any charge at any time before judgment is pronounced but alteration of charge and deletion of charge hold different fields and these two cannot be intermingled, otherwise it will cause miscarriage of justice. This is admitted fact that the discharge application moved by the revisionist was dismissed by the trial court and the criminal revision moved by the revisionist against rejection of discharge application has been dismissed by the Court order dated 9.8.2017, wherein the Court observed that the criminal revision is finally disposed of with a direction that in case, the revisionist is aggrieved with regard to the framing of the charge as on date, he may file an appropriate application at the appropriate stage when the evidence is to be produced with regard to the alteration of charge and in case, such an application is filed, the same shall be heard and decided in accordance with law after hearing all parties concerned.
“From perusal of prayer made in application under Section 216 Cr.P.C, it appears in essence that this is a prayer for discharge as the revisionist has stated that he may be discharged from charged penal sections and the charges levelled against him be quashed. The trial court in exercise of its powers under Section 216 Cr.P.C cannot delete the charges framed by it for the said offences as the criminal procedure code does not confer such powers on the court. The trial court can only alter a charge or to add to a charge, which has already been framed. The discharge application moved by the revisionist has already been dismissed and said order has attained finality.
Section 222 (2) of the Cr.P.C provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
On the basis of foregoing discussions based on facts of this case coupled with judicial authorities cited as above, I find that the revision is devoid of force. There is no illegality, irregularity or impropriety in the impugned order passed by the trial court and the revision is liable to be dismissed”, the Court further observed while dismissing the petition.