1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3203 of 2024 1 - Deepak Kumar Mandal @ Deepu S/o Shri Thakur Prasad Mandal Aged About 50 Years R/o Murlidih Police Station Karmatand, District Bokaro, Region Ranchi Circle, State Jharkhand (Accused) ... Petitioner(s) versus 1 - State of Chhattisgarh Through Station House Officer Sejbahar District Raipur, C.G. (Prosecution) ... Respondent(s) For Petitioner : Shri Awadh Tripathi, Advocate. For State : Shri Pranjal Shukla, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 11.04.2025 1. The present petition has been filed by the petitioner under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the impugned order dated 15.05.2024 passed by the 14th Additional Sessions Judge, Raipur, in Criminal Revision No.418 of 2023 whereby the Criminal Revision filed by the petitioner was dismissed. 2. Brief facts of the case are that the petitioner is an accused and facing trial in Criminal Case No.18592 of 2015 before the Judicial Magistrate First Class, Raipur, for the offence under Section 420 IPC. After examination of some of the witnesses, the prosecution filed an application under Section 216 CrPC on 25.05.2023 before the trial court for addition of the charge for the offence under Section 419 IPC and 66-C and 66-D of the Information Technology Act, 2000. It was Digitally signed by INDRAJEET SAHU Date: 2025.04.17 17:09:08 +0530 2 averred in the application by the prosecution that the petitioner by impersonating himself as a Bank officer withdrawn an amount of Rs.45,075/- from the bank account of the complainant by alluring that her bank account is to be linked with her Adhar Card and got the said amount transferred through mobile phone on his own bank account and therefore, the petitioner is also liable for impersonation as also for the offences under the Information Technology Act. The said application filed by the prosecution was considered by the trial court on 11.09.2023 and allowed the same and directed the petitioner to remain present for framing of additional charge in the case. The said order dated 11.09.2023 passed by the trial court was challenged by the petitioner by filing Criminal Revision No.418 of 2023 before the trial court which came up for hearing on 15.05.2024 and the Revisional Court dismissed the revision on 15.05.2024 which is under challenge in the present petition. 3. Learned counsel for the petitioner have submitted that the prosecution has no right to file an application for alteration/addition of the charge. It is upon the court to consider the evidence independently as to whether the charge framed earlier is required to be altered or any new charge is to be framed or not in view of evidence came on record. He would also submit that the trial court has ample power to alter, amend or add the charge before the pronouncement of judgment, but not on the basis of the application filed by the parties. Therefore, prima facie there is no material available on record for framing of additional charge under Section 419 of IPC and Sections 66C and 66D of I.T. Act, 2000. Therefore, the impugned order be set aside. 3 4. On the other hand, learned counsel for the State supported the impugned order and has submitted that the learned trial court has rightly exercised its jurisdiction provided under Section 216 of Cr.P.C. and allowed the application filed by the prosecution. There is sufficient material available on record for framing of the additional charge of Section 419 of IPC and Sections 66C and 66D of I.T. Act, 2000, and the accused persons have ample opportunity to cross-examine the witnesses. The order impugned is based on proper appreciation of the evidence available on record and principles of law laid down by the Hon’ble supreme Court which needs no interference. 5. I have heard learned counsel for the parties and perused the material produced by the petitioners in the present case. 6. Section 216 of the Cr.P.C. provides for framing or altering the charge framed by the learned trial court and provides that the learned trial court, at any time before the pronouncement of judgment, alter, amend or frame the new charge. Section 216 of the Cr.P.C. is reproduced hereinbelow for ready reference:- “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 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 4 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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 7. True it is that the trial court has ample power to alter, amend or frame new charge at any time before the pronouncement of judgment, but the question would be whether the court can exercise its power on the basis of the application filed by the parties or the court can exercise its jurisdiction on its own based on the evidence available on record. The provision enables alteration or addition of a charge based on material available on record during trial. Sub-section 3 of Section 216 provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the prosecutor in the conduct of the case, the court may proceed with the trial. Sub-section 4 of Section 216 contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused. 8. The Hon’ble Supreme Court, in the matter of P. Kartikalakshmi Vs. Sri Ganesh, 2017 (3) SCC 347, dealt with the situation where the application for alteration of the charge was filed. In para 6 of its judgement, the Hon’ble supreme Court has held that :- “6. Having heard learned counsel for the respective parties, we find force in the submission of learned senior counsel for respondent no.1. Section 216 Cr.P.C. empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no 5 right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 Cr.P.C. to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.” 9. Similarly, in the matter of Anant Prakash Sinha Vs. State of Haryana, 2016 (6) SCC 105, the Hon’ble Supreme Court has considered that:- “18. 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 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.” 10. Recently, the Kerala High Court, in the matter of State of Kerala Vs. Azeez and Others reported in 2024 SCC Online (Ker.) 2059 considered that the exercise of jurisdiction cannot be based on the application of the party but should be on the basis of the own satisfaction of the court. Para 12 of the judgement of the Kerala High Court reads as under:- “12. Thus, the request for the addition of the charge under section 370 IPC, as it stood prior to 2013, cannot be made at the instance of the prosecution. An addition of charge has to be done by the Court based 6 upon its own satisfaction and not at the behest of any of the parties to the trial.” 11. In the present case, the learned trial court after hearing the parties and also on the basis of the application filed by the prosecution, allowed the same and intended to frame the charge of Section 419 of IPC and Sections 66C and 66D of I.T. Act, 2000. There is no independent consideration of the learned trial court as to on the basis of the evidence brought on record by the parties, whether any ingredients are available to frame charge under Section 419 IPC and Sections 66C and 66D of I.T. Act, 2000 or not. The consideration of the learned trial judge cannot be termed as independent consideration or subjective satisfaction of the learned trial court based on the evidence available on record. No doubt that the learned trial court has ample power to alter, amend or frame a new charge any time before the pronouncement of judgment, but not on the application filed by the prosecution. 12. The judgement relied upon by the learned trial court is on the point that the trial court may, at any time before the pronouncement of judgment, alter, add or frame charge. But the question is by which mode. Can it be by own satisfaction or upon the application file by any of the parties? From the aforesaid judgement of the Hon’ble Supreme Court, it is clear that the jurisdiction of Section 216 Cr.P.C. can not be exercised on the application made by any of the parties but on its own satisfaction. 7 13. For the foregoing reasons, the present petition is allowed and the impugned order dated 15.05.2024 (Annexure P-1) is liable to be and hereby set aside. The interference is not on the merits of the case, but on the ground that jurisdiction of Section 216 cannot be exercised on the application made by the parties as in the present case the prosecution has moved the application for adding of charge of Section 419 of IPC and Sections 66C and 66D of I.T. Act, 2000, which was allowed by the learned trial court. The learned trial court will be at liberty to independently consider the alteration or addition of charge in accordance with the law if it is so satisfied. Sd/- (Ravindra Kumar Agrawal) Judge inder