Neutral Citation No. - 2025:AHC:101915 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 14977 of 2025 Applicant :- Kasif Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Srivastava,Sunil Kumar Saroj Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The present application under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred as 'BNSS') has been filed for quashing of the order dated 04.03.2025 passed by learned 3rd Additional District & Sessions Judge, Meerut in S.T. No. 193 of 2024, arising out of case crime no. 277 of 2021, under Sections 498A, 307, 323, 504 IPC, P.S. Lisadi Gate, District Meerut, whereby the trial court has added charge of Section 377 IPC against the applicant. 3. It has been argued by learned counsel for the applicant that applicant is husband of the victim. The sister of victim has lodged first information report against the applicant and his family members for the offence under Sections 324, 323, 498-A IPC and Section 3/4 D.P. Act. In the first information report or in the statement of victim there were no allegations regarding any offence under Section 377 IPC and the charge-sheet was submitted against the applicant for the offence under Sections 324, 323, 498- A, 307 IPC and Section 3/4 D.P. Act and charges were also farmed accordingly. During trial in her statement victim for the first time has made allegation that she was subjected by the applicant to carnal intercourse. On the basis of that statement the trial court has passed the impugned order dated 04.03.2025 and directed that charge under Section 377 IPC be also framed against the applicant. 4. Learned counsel further submitted that such allegation made by victim / wife of applicant in her statement before the trial court cannot be relied upon and that the trial court has added the charge under Section 377 IPC in a mechanical manner. Even the cross- examination of victim has not been completed. Referring to the facts of the matter, it was submitted that the impugned order is against facts and law and thus, liable to be set aside. 5. Learned A.G.A. has opposed the application and argued that there is no illegality or perversity in the impugned order. 6. I have considered the rival submissions and perused the record. 7. Before proceeded further it would be apt to mention the provisions of Section 216 Cr.P.C., which are being quoted herein below:- " Section 216 Cr.P.C. 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 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." 8. From aforesaid provisions it is apparent that the trial court has powered to alter or add any charge at any time before judgement is pronounced. In the instant matter it appears from record that the applicant is husband of victim and the case relates to matrimonial dispute between the parties. The first information report was lodged against the applicant and his family members for the offence under Sections 324, 323, 498-A IPC and Section 3/4 D.P. Act and after investigation charge-sheet was submitted for the offence under Sections 324, 323, 498-A, 307 IPC and Section 3/4 D.P. Act and charges were also farmed for the same offences. It appears that during trial victim / wife of applicant was examined as PW-2 and for the first time in her statement before the trial court she has made allegation that she was subjected by the applicant to carnal intercourse. In view of attending facts, such statement which was made for the first time before the trial court, hardly has any credibility and efficacy. It appears that learned trial court has added the charge under Section 377 IPC in a mechanical manner without considering the prima facie veracity of her statement. Even the cross-examination of victim is yet to be completed. In view of attending facts and circumstances, the impugned order is not sustainable and thus, liable to be set aside. 9. In view of aforesaid, the impugned order dated 04.03.2025 passed by learned 3rd Additional District & Sessions Judge, Meerut is hereby set aside. However prosecution would be at liberty to move a fresh application for alternation of charge after cross-examination of the victim / PW-2 is completed. 10. The application under Section 528 BNSS is allowed in above terms. Order Date :- 1.7.2025 Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad