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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.131 of 2016 (@ Special Leave Petition (Criminal) No.  837 of 2016)

Anant Prakash Sinha @ Anant Sinha …Appellant

Versus

State of Haryana & Anr.        …Respondents

J U D G M E N T

Dipak Misra, J.

Despite  completion  of  a  decade  from  the  date  of

solemnisation of the marriage and in spite of two off springs

in the wedlock, neither the time nor the expansion of family

nor the concern for the children could cement the bond or

weld  the  affinity  between  the  appellant-husband  and  the

wife, the 2nd respondent herein, as a consequence of which

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she  was  compelled  to  set  the  criminal  law  in  motion  by

lodging FIR No. 376 dated 23.11.2013 which was registered

for the offences punishable under Section 498A/323/34 of

the Indian Penal Code (IPC) against the husband and the

mother-in-law alleging that the husband was insistent upon

getting  mutual  divorce  and  on  her  resistance,  he  had

physically assaulted her and deprived her of basic facilities

of life. All these allegations had the foundation in demand of

dowry and non-meeting of the same by the family members

of  wife.  After  due  investigation,  the  prosecuting  agency

placed the charge-sheet against the husband alone for the

offences punishable under Section 498A and 323 IPC before

the  learned  Judicial  Magistrate  1st Class,  Gurgaon  who

eventually  vide  order  dated  04.04.2009  framed  charges

against the husband for commission of the said offences.

2. When  the  matter  was  pending  before  the  learned

Magistrate, an application dated 31.07.2014 under Section

216  of the Code of Criminal Procedure (CrPC) was filed by

the informant-wife for framing an additional charge under

Section 406 IPC against  the  husband and mother-in-law,

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Renuka Sinha.  It  was stated in  the  said  application that

there  was  an  express  complaint  with  regard  to

misappropriation of  the entire  stridhan and other  articles

and hence, the accused persons had committed breach of

trust, but no charge-sheet was filed in respect of the said

offence.  It  was contended that  in  her  statement  recorded

under Section 161 CrPC, she had categorically stated about

misappropriation of the  stridhan by the family members of

her  husband.  The  learned  Magistrate  took  note  of  the

materials,  namely,  stridhan list,  complaint  addressed  to

D.C.P. (East), Gurgaon, statements recorded under Section

161 CrPC and letter  dated 16.11.2013 from Women Cell,

D.C.P. (East), Gurgaon and came to  hold that in view of the

specific allegations regarding misappropriation of her entire

stridhan by the husband and the other statements recorded

during investigation, a prima facie case for criminal breach

of  trust  was  made  out  and,  accordingly,  allowed  the

application under Section 216 CrPC against  the husband

and the mother-in-law. Be it noted, a prayer had been made

to add the charge for the offence under Section 120B IPC

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also  but  the  same  was  not  accepted  by  the  learned

Magistrate.

3. The order passed by the learned Magistrate came to be

assailed  in  Criminal  Revision  No.  5  of  2015  before  the

learned  Additional  Sessions  Judge,  Gurgaon  and  it  was

contended in the revision that the mother-in-law was not

charge-sheeted by the police but the trial court had directed

to frame the charge against her and, therefore, the whole

approach was erroneous.  It was also urged that there was

no material to make out a  prima facie case under Section

406 IPC against the husband. The stand put forth by the

revisionist was combatted by the prosecution as well as by

the informant on the ground that the trial court has power

to add or alter  any charge under Section 216 CrPC and,

therefore, no exception could be taken to the order passed

by the learned Magistrate.  The revisional court dwelt upon

the law pertaining to alteration and addition of charges and

came  to  hold  that  the  framing  of  the  charge  against

mother-in-law  was  unsustainable  but  the  framing  of

additional  charge  under  Section  406  IPC  against  the

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husband, the appellant herein, could not be faulted. Being

of this view, the revisional court partly allowed the revision

petition  by  setting  aside  the  order  of  framing  of  charge

against the mother-in-law.

4. The defensibility of  the aforesaid order was called in

question  by  the  husband  by  preferring  a  petition  under

Section 482 CrPC in the High Court of Punjab and Haryana

forming the subject matter of CRL.M. No. 24510 of 2015.

The soundness of the order was attacked by placing reliance

on the principles as elucidated in CBI v. Karimullah Osan

Khan1 and  Hasanbhai  Valibhai  Qureshi  v.  State  of

Gujarat  and  others2.  As  is  demonstrable  from  the

impugned order, the learned single Judge appreciating the

ratio of  the aforesaid decisions has opined that the court

can  exercise  power  of  addition  or  modification  of  charge

under Section 216 CrPC on the basis of material before the

court. The High Court has also observed that the trial court

has spelt out the reasons that have necessitated for addition

of  the  charge  and  hence,  the  impugned  order  did  not

1 (2014) 11 SCC 538 2 (2004) 5 SCC 347 : (2004) 2 RCR (Criminal) 463

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warrant  any  interference.  To  buttress  the  view,  the  High

Court has drawn support from the authority in  Jasvinder

Saini and others v. State (Government of NCT of Delhi)3.

5. We have heard Mr. Amarendra Sharan, learned senior

counsel appearing for the appellant and Mr. Sanjay Kumar

Visen, learned counsel for the respondent-State.

6. It is submitted by Mr. Sharan, learned senior counsel

for the appellant that the High Court would have been well

within the domain of  its  jurisdiction in exercise  of  power

under Section 482 CrPC in setting aside the orders passed

by the courts below, for the Magistrate has no power under

Section 216 CrPC to alter or modify the charge on the basis

of  an application filed by the  informant.  It  is  his  further

submission  that  the  trial  court  could  have  altered  the

charge if some evidence had come on record but not on the

basis  of  the  material  that  was  already  on  record.

Additionally,  it  is  urged by Mr.  Sharan that  materials  on

record do not remotely attract any of the ingredients of the

offence under Section 406 CrPC and, therefore, addition of

charge in respect of the said offence is wholly unsound and

3 (2013) 7  SCC 256

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faulty.  It  has  also  been  argued  by  Mr.  Sharan  that  the

charges  could  not  have  been  added  on  the  basis  of  an

application filed by the informant, for such an application

as  required  in  law  is  to  be  filed  only  by  the  Public

Prosecutor.  In support of the aforesaid submissions, he has

drawn  inspiration  from  the  authorities  in  Harihar

Chakravarty   v.  State  of  West  Bengal4,  Hasanbhai

Valibhai  Qureshi (supra),  Jasvinder  Saini  and  others

(supra),  Umesh Kumar v. State of Andhra Pradesh and

another5,  Karimullah  Osan  Khan (supra)  and  orders

passed  by  the  High  Court  of  Punjab  and  Haryana  in

Poonam and anr. V. State of Punjab6 and Anant Sinha

v. State of Haryana and ors.7.    

7.  Mr. Visen, learned counsel for the respondent-State,

has  supported  the  order  passed  by  the  High  Court  and

submitted that  there is  no prohibition under Section 216

CrPC  to  alter  or  add  a  charge  prior  to  the  recording  of

evidence if the court is moved for the said purpose and it is

satisfied that charge framed by it deserves to be altered or 4 AIR 1954 SC 266 5 (2013) 10 SCC 591 6 CRR 657 of  2015 [High Court of Punjab and Haryana] 7 Criminal Misc. No. M-1044 of 2014 (O&M) Order dated 07.03.2014

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an additional charge is required to be added.  According to

him,  the  order  passed  by  the  High  Court  being  totally

correct  and  impenetrable,  there  is  no  reason  to  interfere

with the same in exercise of jurisdiction under Article 136 of

the Constitution of India.  Learned counsel would further

contend that when the Magistrate has jurisdiction to rectify

the mistake by adding or altering the charge, he can hear

the  counsel  for  the  parties  and  do  it  suo  motu  and  an

application either filed by the Public Prosecutor or by the

informant is only to bring the said facts to his notice and in

any case, that would not invalidate the order.

8. The controversy as raised rests on two aspects.  The

first aspect that has emanated for consideration is whether

without  evidence being adduced another charge could be

added.  In this context, we may usefully refer to Section 216

CrPC which reads as follows:-

“216. Court may alter charge.— (1) Any court may alter or add to any charge at any time before judgment is pronounced. (2)  Every such alteration or addition shall be read and explained to the accused. (3) If  the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice

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the accused in his defence or the prosecutor in the  conduct  of  the  case,  the  court  may,  in  its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If  the  alteration  or  addition  is  such  that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or  the  prosecutor  as  aforesaid,  the  court  may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge  is  one  for  the  prosecution  of  which previous sanction is necessary, the case shall not be  proceeded  with  until  such  sanction  is obtained,  unless  sanction  has  been  already obtained for a prosecution on the same facts as those  on which  the  altered or  added charge  is founded.”

9. The  aforesaid  provision  has  been  interpreted  in

Hasanbhai  Valibhai  Qureshi (supra)  wherein  the  Court

has observed:-  

“Section 228 of  the  Code in Chapter  XVII  and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of Session and  trial  of  warrant  cases  by  Magistrates respectively. There is a scope of alteration of the charge  during  trial  on  the  basis  of  materials brought  on  record.  Section  216  of  the  Code appearing in Chapter XVII clearly stipulates that any court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused.”

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10.  In  the  said  case,  reference  was  made  to  Kantilal

Chandulal  Mehta v.  State  of  Maharashtra8 wherein  it

has been ruled that Code gives ample power to the courts to

alter or amend a charge provided that the accused has not

to face a charge for a new offence or is not prejudiced either

by keeping him in the dark about the charge or in not giving

him full opportunity of meeting it and putting forward any

defence open to him on the charge finally preferred against

him.   Placing  reliance  on  the  said  decision,  it  has  been

opined that if during trial the trial court on a consideration

of broad probabilities of the case based upon total effect of

the evidence and documents produced is satisfied that any

addition or alteration of the charge is necessary, it is free to

do so, and there can be no legal bar to appropriately act as

the exigencies of the case warrant or necessitate.

11. In  Jasvinder Saini and others (supra), the charge-

sheet was filed before the jurisdictional Magistrate alleging

commission of offences under Sections 498-A, 304-B, 406

and 34 IPC against the appellant Nos. 1 to 4 therein.  A

supplementary  charge-sheet  was  filed  in  which  the

8 (1969) 3 SCC 166

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appellant Nos. 5 to 8 therein were implicated for the case to

which Section 302 IPC was also added by the investigating

officer.   After  the  matter  was  committed  to  the  Court  of

Session, the trial court came to the conclusion that there

was no evidence or material on record to justify framing of a

charge under Section 302 IPC, as a result of which charges

were framed only under Sections 498-A,  304-B read with

Section 34 IPC. When the trial court was proceeding with

the  matter,  this  Court  delivered  the  judgment  in  Rajbir

alias Raju and anr. v. State of Haryana9  and directed

that all  the trial  courts in India to ordinarily add Section

302  to  the  charge  on  Section  304-B  IPC  so  that  death

sentences could be imposed in heinous and barbaric crimes

against  women.   The  trial  court  noted  the  direction  in

Rajbir (supra)  and  being  duty-bound,  added  the  charge

under Section 302 IPC to the one already framed against the

appellant therein and further for doing so, it placed reliance

on Section 216 CrPC.  The said order was assailed before

the  High  Court  which  opined  that  the  appearance  of

evidence  at  the  trial  was  not  essential  for  framing  of  an

9 (2010) 15 SCC 116

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additional  charge  or  altering  a  charge  already  framed,

though it may be one of the grounds to do so.  That apart,

the  High  Court  referred  to  the  autopsy  surgeon  which,

according to the High Court, provided prima facie evidence

for framing the charge under Section 302 IPC.  Being of this

view, it declined to interfere with the order impugned. This

Court adverting to the facts held thus:-    

“It  is  common  ground  that  a  charge  under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B  also  there  is  a  death  involved.  The question whether it is murder punishable under Section  302  IPC  or  a  dowry  death  punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence  whether  direct  or  circumstantial  to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a  charge  of  murder  punishable  under  Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial,  the  court  can  look  into  the  evidence  to determine  whether  the  alternative  charge  of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences  are  different,  thereby  demanding appreciation  of  evidence  from  the  perspective relevant  to  such ingredients.  The trial  court  in that view of the matter acted mechanically for it framed an additional  charge under Section 302

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IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in  Rajbir case. The High Court no doubt made  a  half-hearted  attempt  to  justify  the framing  of  the  charge  independent  of  the directions  in  Rajbir  case  (supra),  but  it  would have been more appropriate to remit the matter back  to  the  trial  court  for  fresh  orders  rather than lending support to it in the manner done by the High Court.”

 12. It  is  appropriate  to  note  here,  the  Court  further

observed  that  the  annulment  of  the  order  passed by  the

court would not prevent the trial court from re-examining

the  question  of  framing  a  charge  under  Section  302 IPC

against  the appellant  therein and passing  an appropriate

order  if  upon  a  prima  facie  appraisal  of  the  evidence

adduced before it, the trial court comes to the conclusion

that  there  is  any  room  for  doing  so.  In  that  context,

reference  was  made  to  Hasanbhai  Valibhai  Qureshi

(supra).

13. In  Karimullah  Osan  Khan (supra),  the  Court  was

concerned  with  the  legality  of  the  order  passed  by  the

Designated  Court  under  the Terrorist  and  Disruptive

Activities  (Prevention)  Act,  1987  for  Bomb  Blast  Case,

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Greater  Bombay  rejecting  the  application  filed  by  the

Central  Bureau  of  Investigation  (for  short  “CBI”)  under

Section 216  CrPC for addition of the charges punishable

under Section 302 and other charges under the IPC and the

Explosives Act read with Section 120-B IPC and also under

Section  3(2)  of  the  Terrorist  and  Disruptive  Activities

(Prevention)  Act,  1987.  The  Designated  Court  framed

charges in respect of certain offences and when the CBI filed

an application for addition of the charge under Section 302

IPC and other offences, the Designated Court rejected the

application  as  has  been  indicated  earlier.  In  the  said

context,  the  Court  proceeded  to  interpret  the  scope  of

Section 216 CrPC. Reference was made to the decisions in

Jasvinder  Saini  (supra)  and  Thakur  Shah  v.  King

Emperor10.  Proceeding further, it has been ruled thus:-

“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

10 (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192

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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. (supra) 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 Section 216 CrPC and other related provisions.”

14. At this juncture,  we have to appropriately recapitulate

the principles stated in Harihar Chakravarty (supra).  In

the said case, a complaint was filed charging the appellant

and  another  for  the  offences  punishable  under  Sections

409, 406, 477 and 114 of the IPC.  The complainant and his

witnesses were examined and on the basis of said evidence,

the learned Magistrate had framed a charge under Section

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409 IPC against the appellant.  The appellant entered upon

his defence and after the trial, the Magistrate acquitted the

appellant  and  the  other  accused  under  Section  409 IPC.

The complainant  filed a criminal  revision before the High

Court which set aside the order of acquittal and remanded

the matter to the Magistrate for decision for amendment of

the  charge  by  examining  appropriate  evidence.   The said

order  was the  subject  matter  of  assail  before  this  Court.

This  Court,  addressing  to  the  merits  of  the  case  opined

thus:-

“8. This was a private prosecution in which the complainant came forward with a story that the never  ordered  the  appellant  to  purchase  these shares  and  that  therefore  the  shares  did  not belong to him, and he had no interest in them or title to them. In fact his case was that the shares were never purchased by the appellant under his instructions. All that was found to be false and it was  found  that  he  did  order  them  to  be purchased  and  that  therefore  the  shares  were his.  The order which was made by the learned Judge  in  effect  meant  that  the  complainant should abandon his original story to lay claim to the  shares  and  prosecute  the  Appellant  for another  and  distinct  offence  which  could  only arise  on  a  different  set  of  facts  coming  into existence after the purchase of  the shares. The appellant  might  or  might  not  be  guilty  of  this other offence, but he is certainly innocent of the offence with which he was charged and for which

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he was fully tried and therefore he is entitled to an acquittal and the learned Judge had no power to set aside that order so long as he agreed, as he did,  that  the  appellant  was  not  guilty  of  the offence  with  which  he  was  charged.  Once  a charge is framed and the accused is found not guilty  of  that  charge  an  acquittal  must  be recorded  under  Section  258(1)  of  the  Criminal Procedure Code. There is no option in the matter and we are of the opinion therefore that the order setting aside the acquittal was in any event bad.

9. Next  as  regards  the  direction  to  alter  the charge so as to include an offence for which the appellant was not originally charged, that could only  be  done if  the  trial  court  itself  had taken action  under  Section  227  of  the  Criminal Procedure Code before it  pronounced judgment. It could only have done so if there were materials before  it  either  in  the  complaint  or  in  the evidence to justify such action.

10. The  complaint  affords  no  material  for  any such case because it is based on the allegation that the shares did not belong to the complainant and that in fact they were never purchased. The learned Judge observed that the contention was that the shares belonged to the complainant and were dishonestly  pledged by the  appellant  with the Nath Bank. We do not find even a word about this either in the complaint or in the examination of the complainant.”  

[emphasis is added]

15. After so stating, the Court opined that there was no

material on which the trial court could have amended the

charge  under  Section  227  CrPC  and  the  learned  Judge

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therefore  had  no  power  to  direct  an  amendment  and  a

continuation of the same trial as he purported to do.   The

purpose of laying stress on the said authority is that the

trial  court  could  issue  a  direction  for  alteration  of  the

charge if there were materials before it in the complaint or

any  evidence  to  justify  such  action.    On  the  aforesaid

three-Judge Bench decision, it is quite vivid that if there are

allegations in the complaint petition or for that matter in

FIR  or  accompanying  material,  the  court  can  alter  the

charge.  In  Thakur Shah v. King Emperor  (supra), what

the Court has held is that 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.   It  does  not

necessarily mean that the alteration can be done only in a

case where evidence is adduced.  We may hasten to clarify

that there has been a reference to the decision rendered in

Harihar Chakravarty (supra) but the said reference has to

be  understood  in  the  context.   Section  216  CrPC,  as  is

evincible, does not lay down that the court cannot alter the

charge  solely  because  it  has  framed  the  charge.   In

Hasanbhai Valibhai Qureshi (supra), it  has been stated

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there is scope for alteration of the charge during trial on the

basis of material brought on record.  In  Jasvinder Saini

and others (supra), it has been held that circumstances in

which addition or alteration of  charge can be made have

been stipulated in Section 216 CrPC and sub-sections (2) to

(5)  of  Section  216  CrPC  deal  with  the  procedure  to  be

followed once the court decides to alter or add any charge.

It has been laid down therein that the question of any such

addition  or  alteration  generally  arise  either  because  the

court finds the charge already framed to be defective for any

reason or  because such addition is  considered necessary

after the commencement of  the trial having regard to the

evidence  that  may  come  before  the  court.   If  the  said

decision is  appositely  understood,  it  clear  lays  down the

principle  which  is  in  consonance  with  Harihar

Chakravarty (supra).  

16. From the aforesaid,  it  is  graphic  that  the court  can

change or alter the charge if there is defect or something is

left out.  The test is, it must be founded on the material

available on record. It can be on the basis of the complaint

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or  the  FIR  or  accompanying  documents  or  the  material

brought on record during the course of trial. It can also be

done at any time before pronouncement of judgment.  It is

not  necessary  to  advert  to  each and every  circumstance.

Suffice  it  to  say,  if  the  court  has  not  framed  a  charge

despite the material on record, it has the jurisdiction to add

a charge.  Similarly, it has the authority to alter the charge.

The principle that has to be kept in mind is that the charge

so framed by the Magistrate is in accord with the materials

produced before him or if  subsequent evidence comes on

record. It is not to be understood that unless evidence has

been let in, charges already framed cannot be altered, for

that is not the purport of Section 216 CrPC.

17. In  addition  to  what  we  have  stated  hereinabove,

another aspect also has to be kept in mind. It is obligatory

on the part of the court to see that no prejudice is caused to

the accused and he is allowed to have a fair trial. There are

in-built safeguards in Section 216 CrPC.  It is the duty of

the trial court to bear in mind that no prejudice is caused to

the accused as that has the potentiality to affect a fair trial.

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It has been held in  Amar Singh   v. State of Haryana11

that the accused must always be made aware of the case

against them so as to enable him to understand the defence

that he can lead. An accused can be convicted for an offence

which  is  minor  than  the  one  he  has  been charged  with,

unless the accused satisfies the court that there has been a

failure of  justice by the non-framing of a charge under a

particular  penal  provision,  and  some  prejudice  has  been

caused to the accused. While so stating, we may reproduce

the  following  two  passages  from  Bhimanna  v.  State  of

Karnataka12:-  

“25. Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which  provide  that,  an  order  of  sentence  or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there  was  some  irregularity  or  omission  or misjoinder of charges, unless the court comes to the  conclusion  that  there  was  also,  as  a consequence, a failure of justice. In determining whether  any  error,  omission  or  irregularity  in framing the charges has led to a failure of justice, this  Court  must  have  regard  to  whether  an objection  could  have  been  raised  at  an  earlier stage  during  the  proceedings  or  not.  While judging  the  question  of  prejudice  or  guilt,  the court must bear in mind that every accused has

11 (1974) 3 SCC 81 12 (2012) 9 SCC 650

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a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

26. This  Court  in  Sanichar  Sahni v.  State  of Bihar13,  while  considering  the  issue  placed reliance  upon  various  judgments  of  this  Court particularly  on  Topandas v.  State  of  Bombay14, Willie  (William)  Slaney v.  State  of  M.P.15, Fakhruddin v.  State  of  M.P.16,  State  of  A.P. v. Thakkidiram  Reddy17,  Ramji  Singh v.  State  of Bihar18 and  Gurpreet  Singh v.  State  of  Punjab19 and came to the following conclusion: (Sanichar Sahni case (supra), SCC p. 204, para 27)

“27. Therefore … unless the convict is able to  establish  that  defect  in  framing  the charges  has  caused  real  prejudice  to  him and that  he  was not  informed as to what was the real case against him and that he could  not  defend  himself  properly,  no interference  is  required  on  mere technicalities. Conviction order in fact is to be  tested  on  the  touchstone  of  prejudice theory.”

A  similar  view  has  been  reiterated  in  Abdul Sayeed v. State of M.P.20”

13 (2009) 7 SCC 198 14 AIR 1956 SC 33 15 AIR 1956 SC 116 16 AIR 1967 SC 1326 17 (1998) 6 SCC 554 18 (2001) 9 SCC 528 19 (2005) 12 SCC 615 20 (2010) 10 SCC 259

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18. We  have  reproduced  the  aforesaid  passages  by

abundant caution so that while adding or altering a charge

under Section 216 CrPC, the trial court must keep both the

aforestated principles in view.   The test of prejudice, as has

been stated in the aforesaid judgment, has to be borne in

mind.   

19. Presently  to  the  second  aspect.  Submission  of  Mr.

Sharan  is  that  the  learned  Magistrate  could  not  have

entertained the application preferred by the informant, for

such an application is incompetent because it has to be filed

by the public prosecutor. In this regard, he has laid stress

on  the  decision  in  Shiv  Kumar  v.  Hukam Chand  and

another21. In the said case, the grievance of the appellant

was that counsel engaged by him was not allowed by the

High Court to conduct the prosecution in spite of obtaining

a consent from the concerned Public Prosecutor.  The trial

court had passed an order to the extent that the advocate

engaged by the informant shall conduct the case under the

supervision, guidance and control of the Public Prosecutor.

He  had  further  directed  that  the  Public  Prosecutor  shall

21 (1999) 7 SCC 467

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retain with himself  the  control  over  the  proceedings.  The

said order was challenged before the High Court and the

learned single Judge allowing the revision had directed that

the lawyer appointed by the complainant or private person

shall  act under the directions from the Public Prosecutor

and may with the permission of the court submit written

arguments  after  evidence  is  closed  and  the  Public

Prosecutor  in-charge  of  the  case  shall  conduct  the

prosecution.  This  Court  referred  to  Sections  301,  302(2),

225 CrPC and various other provisions and came to hold as

follows:-

“13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the  State  that  the  policy  must  strictly conform to fairness in the trial of an accused in a Sessions  Court.  A  Public  Prosecutor  is  not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The  expected  attitude  of  the  Public  Prosecutor while conducting prosecution must be couched in fairness  not  only  to  the  court  and  to  the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during  trial  the  Public  Prosecutor  should  not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it  to the fore

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and make it available to the accused. Even if the defence  counsel  overlooked  it,  the  Public Prosecutor has the added responsibility to bring it  to  the  notice  of  the  court  if  it  comes  to  his knowledge.  A  private  counsel,  if  allowed  a  free hand  to  conduct  prosecution  would  focus  on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps,  comparable  with  that  of  a  junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the  Public  Prosecutor  albeit  the  fact  that  he  is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial  would become a combat  between  the  private  party  and  the accused  which  would  render  the  legislative mandate  in  Section  225  of  the  Code  a  dead letter.”

20. Being of this view, this Court upheld the order passed

by the High Court. The said decision is, in our opinion, is

distinguishable on facts. The instant case does not pertain

to trial or any area by which a private lawyer takes control

of the proceedings.  As is evident, an application was filed

by the informant to add a charge under Section 406 IPC as

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there  were  allegations  against  the  husband  about  the

criminal breach of trust as far as her stridhan is concerned.

It  was,  in  a  way,  bringing  to  the  notice  of  the  learned

Magistrate about the defect in framing of the charge. The

court could have done it suo motu.  In such a situation, we

do not find any fault on the part of learned Magistrate in

entertaining the said application. It may be stated that the

learned  Magistrate  has  referred  to  the  materials  and

recorded his  prima facie satisfaction.  There is no error in

the said  prima facie   view.   We also do not perceive any

error in the revisional order by which it has set aside the

charge framed against  the mother-in-law. Accordingly,  we

affirm  the  order  of  the  High  Court  in  expressing  its

disinclination to interfere with the order passed in revision.

We  may  clarify  that  the  entire  scrutiny  is  only  for  the

purpose of framing of charge and nothing else. The learned

Magistrate will proceed with the trial and decide the matter

as  per  the  evidence  brought  on  record  and  shall  not  be

influenced by any observations made as the same have to be

restricted for the purpose of testing the legal defensibility of

the impugned order.

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21. Consequently,  the  appeal,  being  devoid  of  merit,

stands dismissed.

  .................................J.   [Dipak Misra]

.................................J.       [Shiva Kirti Singh]

NEW DELHI March, 4, 2016