Statement Of Victim U/S. 161 CrPC Sufficient To Alter Charges In Exercise Of Jurisdiction U/S. 216 CrPC: Allahabad HC

The Allahabad High Court observed that the statement of victim under Section 161 of the Criminal Procedure Code (CrPC) can be sufficient to alter the charges in exercise of the jurisdiction under Section 216 of CrPC.

The Court was deciding an application under Section 482 of CrPC against the order of the Trial Court relating to the offence under Section 372 and 373 of the Indian Penal Code (IPC) and Sections 3, 4, 5, 6, and 9 of the Immoral Traffic (Prevention) Act, 1956.

A Single Bench of Justice Dinesh Pathak said, “Statement of victim u/s 161 Cr.P.C., priam facie, is suficient to alter the charges in exercise of jurisdiction u/s 216 Cr.P.C. Trial court by order impugned has simply allowed the application acknowledging the relevant fact for the purposes of framing of charge, however, he has deferred the matter for framing of charge on the next date fixed. Therefore, in may opinion opportunity is still open for the applicant to raise question qua adequate material on record with respect to the framing of additional charge, if any.”

The Bench also said that the right of accused to have a fair trial and no prejudiced beget to him while conducting the trial is an obligatory at the part of the court, however, said right of the accused cannot be seen in isolation and same would be considered in conjunction with the provisions as enunciated under Section 216 CrPC.

Senior Advocate Daya Shankar Mishra appeared on behalf of the applicant while Advocate Raj Kumar Kesari and AGA appeared on behalf of the opposite parties.

Brief Facts -

An FIR under Sections 373 and 373 IPC and under Sections 3, 4, 5, 6, and 9 of Immoral Traffic (Prevention) Act, 1956 was lodged by the Police Inspector as some young girls were recovered from two different places. A charge sheet was submitted against two accused persons, however, the applicant was neither named in the FIR nor arraigned in the charge sheet as an accused. Ultimately, trial was concluded convicting both accused and the same was affirmed by the High Court. During this period, an application was moved under Section 319 CrPC to call upon the eight persons including the applicant as an accused for trial together with other co-accused and the said application was rejected by the Trial Court. The High Court, on an application being filed under Section 482 CrPC, relegated the parties before the Trial Court with a direction to reconsider the application under Section 319 CrPC.

The Trial Court, after remand, passed the order with a direction that the matter may be reinvestigated under Section 173(8) CrPC. In pursuance thereof, after due investigation, Investigating Officer submitted the supplementary charge sheet arraigning the applicant under Sections 3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act and under Sections 372 and 373 IPC. Considering the supplementary charge sheet, the Trial Court framed the charges against the applicant and at later stage, prosecution moved an application beseeching frame one additional charge under Section 376 IPC against the applicant. The Trial Court allowed the aforesaid application and fixed a date for framing of additional charge against the applicant. On the pointed query raised to the counsel for the parties, they stated that till date charge was not framed under Section 376 IPC. Having been aggrieved, with the order, allowing the application, applicant invoked the inherent jurisdiction of the Court by moving the application.

The High Court in view of the above facts noted, “Having considered the matter in hand, in light of the guidelines of Hon'ble Supreme Court as discussed above, I am of the considered opinion that learned trial court has rightly entertained the Misc. Application (Paper No.10Kha) as a piece of information moved on behalf of prosecution. While deciding the said application, learned trial court has specifically considered the allegation of forceful sexual assault made by victim which was left to be noticed at the time of framing charges. In her statement u/s 161 Cr.P.C. she has made specific allegation, as highlighted by learned trial court, of rape. Statement of victim under Section 161 Cr.P.C. was recorded by the Investigating Officer during re-investigation under Section 173(8) Cr.P.C.”

The Court observed that any defect in framing charges which begot due to lack of proper consideration of the material on record can be rectified at any stage of trial even before the delivery of judgment in exercise of power under Section 216 CrPC and it might possible that court misled in framing of charges.

“… the Public Prosecutor has a duty to be vigilant and apprise the court qua correct facts of the case in the light of the material on record and, accordingly, take an appropriate steps for substraction or addition of charges under the provisions of law as enunciated under Section 216 Cr.P.C. … there is no iota of doubt qua wide power of the courts for substraction or addition of charges under Section 216 Cr.P.C. Miscellaneous application dated 12.3.2021 (Paper no.10Kha) moved on behalf of the prosecution cannot be treated to be an independent initiation rather than a piece of information which is pious duty of the prosecution (Public Prosecutor) to bring the correct fact to the notice of the court concerned so that correct charges could be framed for the purposes of fair trial sans begetting prejudiced to any party”, also said the Court.

Furthermore, the Court observed that the trial court has not committed any error in entertaining the application and fixing the date for framing of charge in the light of the fact which has been brought to his knowledge in the said application.

“At this juncture, this Court, in exercise of it’s inherent jurisdiction, cannot assume the power to examine the correctness and validity of the statement of witness under Section 161 Cr.P.C. in the light of procedural glitch, if any, more particularly for want of recording the statement by authority competent as allegedly required under the Immoral Traffic (Prevention) Act, 1956”, concluded the Court.

Accordingly, the High Court dismissed the application.

Cause Title- Om Prakash @ Jani v. State of U.P. (Neutral Citation: 2023:AHC:242512)

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