Kolkata High Court held that Victim is entitled to file plea under sec 216, CrPC 1973, for addition of charge
The Calcutta High Court has held that a victim/ De-facto complainant is entitled to file a plea under Section 216 of the Code of Criminal Procedure (CrPC) for addition or alteration of charge.
The Court also ruled that Section 362 of CrPC (which is a bar on the court altering its judgment) does not bar such addition of charge under Section 216 as Section 362 itself provides for such an exception.
The judgment was rendered by Justice Asha Arora in a plea against an order passed by Additional Sessions Judge, Fast Track 3rd Court, Barrackpore on August 21, 2018.
By way of background, the Additional Sessions Judge was hearing a case and had by way of an order dated April 11, 2018 framed charge against the accused/ petitioner under Section 306 of Indian Penal Code (IPC).
Subsequently, by way of an order dated August 21, 2018, the charge was altered on the basis of an application under Section 216 of CrPC filed by the de-facto complainant.
By way of that August 21 order, the trial judge framed charge for the offences punishable under sections 302 and 376 of IPC against the accused-petitioner.
This order of August 21 was assailed before the Calcutta High Court by the accused. The case of the accused-petitioner was based on two contentions.
The first submission was that a defacto complainant has no locus standi to file an application for alteration of the charge since the power under Section 216 of CrPC vested in court is exclusive. The de-facto complainant or the accused or the prosecution cannot seek addition or alteration of charge by filing an application as a matter of right.
Secondly, it was canvassed that the power to alter a charge is barred by Section 362 of CrPC since the order of charge has attained finality. So alteration or review of such a final order except for correcting a clerical or arithmetical error is impermissible.
On the first contention, the High Court placed reliance on the judgments of the Supreme Court in Ratanlal v. Prahlad Jat and Others[(2017) 9 Supreme Court Cases 340] and P Kartikalakshmi v. Sri Ganesh and Another [(2017) 3 Supreme Court Cases 347].
The High Court held that from para 6 of Kartikalakshmi’s judgment, it is evident that Section 216 of the Code of Criminal Procedure is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or is brought to its notice.
In the case in hand, the error or omission in framing the charge was brought to the notice of the trial court by the de-facto complainant and accordingly the charge was altered upon perusal of the material which was overlooked. Thus, it turned down the first contention.
Regarding the second contention, the court noted the wording of Section 362 of CrPC. It reads:
Court not to alter judgment.- by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
Thus, the provision begins by stating that an exception can be provided by the CrPC itself. Section 216 provides for such an exception.
By virtue of Section 216 of CrPC, the Court is vested with the power to alter or add to any charge at any time before judgment is pronounced. In view of the specific provision in CrPC under Section 216, the bar under section 362 CrPC is not applicable in the case of alteration of charge by the Court, the High Court ruled.
Thus, there is no merit in the argument on behalf of the petitioner that alteration of charge is barred by Section 362 of CrPC, the Court concluded.
The Court, therefore, dismissed the plea
