Neutral Citation No. - 2025:AHC:88298 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 17485 of 2025 Applicant :- Ajmer Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Agnivesh,Jadu Nandan Yadav Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record. 2. This application under Section - 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been preferred against order dated 27.02.2025, passed by the learned Additional Civil Judge (Senior Division) / Additional Chief Judicial Magistrate, Kannauj, in Complaint No. 1383 of 2019 (Ajmer Vs. Arif and Others), under Sections 325, 323, 504, 506 I.P.C., Police Station - Thathiya, District - Kannauj, whereby the application filed by applicant for addition of charge under Section - 326 I.P.C. has been rejected. 3. It is submitted by learned counsel for the applicant that impugned order is against facts and law and thus, liable to be set aside. Applicant is complainant of the case. It was stated that applicant has lodged first information report of this case on 01.07.2015 under Section - 323, 504, 326 I.P.C. but after investigation, police have submitted final report in favour of opposite party no.2 to 4. Applicant has preferred a protest petition, which was registered as a complaint case and the opposite party no.2 to 4 were summoned for offence under Section - 325, 323, 504, 506 I.P.C.. After evidence under Section - 244 Cr.P.C., the Trial court has framed charge under Section - 323, 325, 504, 506 I.P.C. Learned counsel submitted that in the incident a tooth of applicant was dislocated and that in his statement under Section - 244 Cr.P.C. the complainant has alleged that he was attacked with 'lathi' and rod and thus, a prima facie case under Section - 326 I.P.C. was made out but the application of applicant for addition of charge under Section - 326 I.P.C. has been rejected by the learned Trial court without considering facts and law. 4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. Before proceedings further it would be appropriate to quote the provisions of Section - 216 Cr.P.C. which reads as under :- "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 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." 7. From the above stated provisions, it is apparent that the court is authorized to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase "add to any charge" in Sub-Section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Thus, Section 216 Cr.P.C. provides that the addition or alteration has to be done "at any time before judgment is pronounced. Section 216 CrPC confers jurisdiction on all 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. 8. It is well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. 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 CrPC 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 needs to be passed for that purpose. In this connection a reference may be made to the case of Kartikalakshmi v. Sri Ganesh (2017) 3 SCC 4347. 9. In the instant matter, perusal of record shows that the opposite party no.2 to 4 were summoned for offences under Section - 325, 323, 504, 506 I.P.C. and after evidence under Section - 244 Cr.P.C., they were charged under Section - 325, 323, 504, 506 I.P.C. vide order dated 01.07.2023. It appears that applicant / complainant has moved an application before the Trial court alleging that he was attacked with an iron rod and his tooth was dislocated and thus charge under Section - 326 I.P.C. be also added against opposite party no.2 to 4, which has been rejected by the Trial court vide impugned order dated 27.02.2025. Perusal of record shows that learned Trial court has considered entire facts, including injury report, and rejected the application of applicant by a reasoned order. It was observed that there is no such specific allegation that applicant was attacked with any such weapon / instrument so as to make out a case under Section - 326 I.P.C.. After considering material on record, it appears that there is no material illegality or perversity in the impugned order. There is nothing to show that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by this Court by invoking extraordinary powers under Section - 528 BNSS. The application u/s 528 BNSS lacks merit and thus, liable to be dismissed. 10. The application u/s 528 BNSS is hereby dismissed. Order Date :- 23.5.2025 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad