Allahabad High Court
Smt Geeta Devi vs State Of U.P. And 6 Others on 6 August, 2025
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:132219 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 10195 of 2025 Applicant :- Smt Geeta Devi Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Manvendra Singh Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the applicant as well as learned A.G.A. for the State-respondent no.1 and perused the record on Board.
2. The applicant has invoked the inherent jurisdiction of this court under Section 528 B.N.S.S. (Old Section 482 Cr.P.C.) to quash the order dated 20.01.2025 passed by the learned Additional Sessions Judge/Special Judge S.C./S.T. Act, Mainpuri in Sessions Trial No.25 of 2021 (State vs. Ashok Bhadauriya), arising out of Case Crime No.474 of 2020 under Sections 147, 323, 504, 506 I.P.C. and Section 3(1) (da) (Dha) and 3(2)(va) S.C./S.T. Act, Police Station Bewar, District Mainpuri, whereby application under Section 216 Cr.P.C. moved on behalf of the first informant (applicant herein) has been rejected.
3. As per FIR version, on 16.12.2020 at around 10:00 AM when, the first informant was going toward her field in the morning for work she saw that villagers Ashok Bhadauriya, Raghvendra, Vipin Kumar, Rajeev Kumar alias Banti, Praveen Kumar and Puneet were tying barbed wire on the boundary of her field. When the she resisted, then they abused and misbehaved with her, and beat her with kicks and punches, and hit her on the leg due to which she sustained injury. Further, they threatened to kill her. Praveen and Vipin have said that “We will shoot you so much that your family won’t be able to recognise you”, and Praveen gave a death threat. The first informant claimed herself to be a person belonging to Scheduled Caste, and because of this, on date 18.12.2020 at around 11:00 PM in the night, they set fire to her cot, chair, approximately ?30,000 in cash, all burnt to ashes due to which she is in a lot of trouble.
4. After due investigation, the Investigating Officer has submitted the charge-sheet no.45 of 2021 dated 20.02.2021 arraigning the accused (respondents no.2 to 7 herein) for the offence, as mentioned above. The court concerned has taken cognizance and issued summons. Based on the charge-sheet, charges were framed against all the accused. During pendency of trial, the first informant (applicant herein) has moved an application (paper no.21-Va) under Section 216 Cr.P.C. for addition of a new charge under Section 436 I.P.C., with an averment that statement under Section 161 Cr.P.C. and deposition of the prosecution witnesses unequivocally disclose that the accused set the hut of the present applicant ablaze and used caste based slur. Special Judge, S.C./S.T. Act, having considered the entire evidence on record, has rejected the application by the order dated 20.01.2025, which is under challenge before this Court.
5. Learned counsel for the applicant submits that despite the credible material available on the record, the court concerned has illegally rejected the application under Section 216 Cr.P.C. denying framing of a new charge for the offence under Section 436 I.P.C. Statement of PW-1 (first informant) and PW-2 (daughter of the first informant) as well as statement of witnesses under Section 161 Cr.P.C., prima facie, made out a case for the offence under Section 436 I.P.C. It is next submitted that the court below has passed the order in a perfunctory manner without application of mind and failed to exercise his jurisdiction under Section 216 Cr.P.C. to add a new charge.
6. Learned A.G.A. has vehemently opposed the submissions advanced by learned counsel for the applicant and contended that no credible material is available on the record to frame a new charge for arson under Section 436 I.P.C. He has also emphasized the query made by the Investigating Officer, while recording statement under Section 161 Cr.P.C., wherein she did not give a satisfactory reply to the question as to whether she had seen anyone setting the fire. He has further contended that in absence of any material, learned court concerned has rightly denied to exercise his jurisdiction under Section 216 Cr.P.C. Lastly, he has contended that the present application is devoid on merits and there is no abuse of process of law in rejecting the application (paper no.21-Va); thus, instant application may be dismissed being misconceived.
7. Having considered the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. and upon perusal of record, it manifests that in the F.I.R. allegation of setting the hut on fire has been levelled against respondents no.2 to 7; however, the first informant, prima facie, failed to produce any credible material to substantiate the veracity of the allegation of arson against them. In her statement under Section 161 Cr.P.C., she has supported the first information report version and reiterated the same verbatim. So far as offence of arson is concerned she has reiterated that “these people have long-standing enmity with me. Due to this enmity, on date 18.12.2020, at around 11:00 p.m. in the night, they set my hut on fire, because of which my cot, chair, and approximately ?30,000 in cash were burnt to ashes, making my livelihood difficult.” During course of her statement, following questions were asked by the investigating officer:-
Question: Did you see anyone setting the fire?
Answer: Remained silent at first. Then said, “Sahab, these people have an old dispute with me over a path, they must have set the fire. Otherwise, I did not see anyone.
Question: You already have a permanent house, and your hut is at a distance of 3 metres from it. Then why did you keep the money in the hut instead of the house?
Answer: No reply given.
Question: When the hut caught fire, who came to help extinguish the fire?
Answer: No one.
8. So far as the statement of PW-1 (first informant) is concerned, a careful perusal of the said statement does not suggest that she saw the accused setting her hut ablaze on the night of 18.12.2020. In her examination-in-chief, she has made simple allegations, as mentioned in the F.I.R. Her daughter (PW-2)) has deposed along similar lines as her mother. She has made simple allegation naming the accused stating that they set the hut on fire on the night of 18.12.2020; however, she too, prima facie, failed to make any credible statement to substantiate the involvement of the accused in the offence under Section 436 I.P.C., which provides as follows :-
“436. Mischief by fire or explosive substance with intent to destroy house, etc. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
9. A bare perusal of section 436 I.P.C. would go to show that where mischief by fire or any explosive substance is committed intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building, which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property is to be punished for the offence under section 436 I.P.C.
10. I am sceptical of the submissions advanced by learned counsel for the applicant that the court below has failed to exercise its jurisdiction under Section 216 Cr.P.C. Needless to say that any court may alter or add a charge at any time before the judgment is pronounced; however, such power entrusted to the court is not unfettered and the same is subject to the evidence recorded during the course of trial before the court concerned. It is the duty of the court, while dealing with an application under Section 216 Cr.P.C., to ensure that addition, deletion or alteration of any charge does not encompass any prejudice or operation to the accused. The Hon’ble Supreme Court of India in the case of Central Bureau of Investigation vs. Karimullah Osan Khan reported in (2014) 11 SCC 538 has expounded in paragraph 18 that for adding or altering the charge, there must be some material before the court. Paragraph nos. 17 and 18 of the said judgment is quoted herein below :-
“17. Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.
18. Section 216 CrPC confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub-sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. (See Harihar Chakravarty v. State of W.B.) Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in in Section 216 CrPC and other related provisions.”
11. The Hon’ble Supreme Court in the case of P. Kartikalakshmi vs. Sri Ganesh & Another reported in (2017) 2 SCC (Cri.) 84 has elucidated the power of the Court under Section 216 Cr.P.C. and held that power under Section 216 Cr.P.C. vested in the Court is exclusive to the Court and there is no right in any party neither de facto complainant nor accused nor prosecution to seek such addition or alteration by filing an application as a matter of right. Relevant paragraph nos. 7 and 8 of the said judgment are quoted herein below :-
“7. We were taken through Sections 221 and 222 CrPC in this context. In the light of the facts involved in this case, we are only concerned with Section 216 CrPC. 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 CrPC 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 it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC. If such a course to be adopted by the parties is allowed, then it will be well-nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardised.
8. In such circumstances, when the application preferred by the appellant itself before the trial court was not maintainable, it was not incumbent upon the trial court to pass an order under Section 216 CrPC. Therefore, there was no question of the said order being revisable under Section 397 CrPC. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 CrPC. To that extent, having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the trial court. As rightly pointed out by the learned Senior Counsel for Respondent 1, such a course adopted by the appellant and entertained by the court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the court below.”
12. In this conspectus, as above, I am of the view that in the absence of any credible material collected during investigation or any evidence adduced during the trial before the court concerned to suggest the involvement of the accused (respondents no.2 to 7 herein) in the offence under Section 436 I.P.C., it would not be befitting to allow the application under Section 216 Cr.P.C. to frame a new charge. Mere averment in the F.I.R., which has been reiterated verbatim in the statement under Section 161 Cr.P.C., and the depositions of PW-1 and PW-2 are not, prima facie, sufficient to indict the accused or to summon for trial on a new charge under Section 436 I.P.C. The court below has returned a specific finding that the first informant could not explain where she was at the time of incident. Even she did not prove the withdrawal of Rs. 30,000/- from the bank, which she allegedly claimed was burned to cinders. No eye-witness has been adduced to, prima facie, establish the involvement of the accused in the overt act for which an additional charge has been sought to be framed. Neither any justifiable ground is made out nor there is any abuse of process of law to quash the order impugned in exercise of inherent jurisdiction under Section 528 B.N.S.S. (Old Section 482 Cr.P.C.). The court below has not committed any illegality, perversity or ambiguity in rejecting the application (paper no.21-Va) filed on behalf of the first informant (applicant herein) under Section 216 Cr.P.C.
13. Resultantly, instant application, being misconceived and devoid of merits, is dismissed with no order as to costs
Order Date :- 6.8.2025
VR
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