Neutral Citation No. - 2025:AHC:153001 Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 11374 of 2024 Petitioner :- Jyoti Mala Gupta Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Rajeev Sawhney Counsel for Respondent :- G.A.,Girish Kumar Yadav Hon'ble Ms. Nand Prabha Shukla,J. 1. Heard Sri Rajeev Sawhney, learned counsel for the petitioner, Sri Girish Kumar Yadav, learned counsel for the private respondents, learned AGA for the State and perused the record. 2. Learned counsel for the private respondents does not propose to file any counter- affidavit. 3. Briefly stated, the petitioner-wife lodged an FIR No. 38 of 2014 under Section 498A, 506 IPC, PS: Raipurwa, District Kanpur Nagar against the respondent Nos. 2 to 5 on 14.03.2014 alleging that her marriage was solemnized with respondent No.2 Akhil Kumar Gupta on 09.11.2008. When she reached at her matrimonial home, her in laws snatched her Rs. 15,000/- cash, jewellery and a brief case gifted by her mother. Her in laws tortured physically and mentally due to which her health deteriorated. Her parents arranged for her medical treatment and after the assurance of her in laws, she again returned back to her in laws place. Again on 2nd and 3rd February, 2010, petitioner was subjected to cruelty and at the time of her pregnancy, her husband and mother in law assaulted at her abdomen due to which she faced severe complications and was admitted at SBM Medical College, Kanpur on 27.02.2010. Due to previous ailments and the assault given by in laws amongst the twin foetus, one foetus died in the womb. As there was chance of acute poisoning, the other foetus was aborted. Her in laws left her alone in hospital on 08.03.2010. Her parents brought her to their home where she was given further medical treatment. Though, several attempts have been made for the compromise but she is residing at her Maika. 4. After the aforesaid FIR, the respondents-accused were charge-sheeted under Section 498-A and 506 I.P.C. The charges were framed and the trial proceeded. During the course of the trial, the petitioner has been examined as PW-1 and has been cross-examined supporting the prosecution case. The brother of the petitioner Pankaj Gupta has been examined as PW 2 and had supported the prosecution case. Dr. Kiran Pandey, has been examined as PW-4, who was posted as doctor of Ganesh Shankar Vidharthi Memorial Hospital and proved the two medical reports and the Ultrasound report of the petitioner. 5. On the basis of the aforesaid material, the petitioner moved an application dated 26.09.2019 under Section 216 Cr.P.C. for framing of additional charge before the First A.C.M.M, Kanpur Nagar in Case No. 1706 of 2014 stating that during the course of pregnancy, the husband of the applicant had kicked on her stomach that resulted in death of one foetus in the womb and the other was aborted but the investigating officer did not file the charge-sheet against the accused persons under Section 313 IPC, therefore, on the basis of the testimony of PW-1, PW-2 and PW-4, the necessary facts and evidence have been brought before the Court, therefore, Section 313 IPC may also be added. It has been submitted that the learned Magistrate without application of mind had rejected the application of the petitioner moved under Section 216 Cr.P.C., on 28.09.2023 without considering the evidence of PW-1, PW-2 and PW-4 and the FIR that supported the prosecution version. The petitioner, being aggrieved by the order rejected the application under Section 216 Cr.P.C. The criminal revision filed before the Additional District and Sessions Judge, Court No. 20, Kanpur Nagar, was also rejected vide order dated 28.09.2023. 6. Learned counsel for the petitioner further submits that the petitioner-informant has categorically stated in the FIR and reiterated the allegations by means of oral as well as documentary evidence on record in the form of medical reports by deposing that the respondents had voluntarily assaulted her and caused injury in her abdomen during her pregnancy due to which she suffered severe pain that resulted in miscarriage of her unborn child and was rushed to the hospital for her treatment. It has been emphasized that the said facts and circumstances satisfy the essentials of Section 313 read with 312 IPC and the learned trial court has committed manifest and substantial error in not framing the charge under Section 313 IPC despite concrete, credible and material evidence available on record. 7. It has been further emphasized by learned counsel for the petitioner that the petitioner never gave any consent for abortion but, if any, in case is inferred from her statement, the same cannot said to be a valid consent in the light of the Section 90 I.P.C., as the same, if any, was given under fear of death. learned counsel for the petitioner further submits that the medical records evidently highlights that the abortion of the child took place because of fatal demise. 8. Learned counsel for the petitioner has placed reliance upon the judgment passed by Hon'ble Apex Court in Anant Prakash Sinha Alias Anant Sinha v. State of Haryana and another, (2016) 6 Supreme Court Cases 105. 9. Per contra, learned counsel for the opposite parties have opposed the aforesaid submission. 10. At this juncture, it is relevant to refer the provision of Section 216 Cr.P.C. Section 216 of the Code of Criminal Procedure deals with alteration or addition of any charge and empowers the Court to do so at any time before the judgment is pronounced. The Section runs as follows:- "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 has 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." 11. A plain reading of the above would show that the Court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the Court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the Court after commencement of the trial. There can in the light of the above be no doubt about the competence of the Court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the Court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the Court. 12. Recently, the Hon'ble Apex Court in the judgment of P. Kartiklakshmi v. Sri Ganesh and another, reported in 2017 3 SCC 347 has held that "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 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 it 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." 13. In the light of above, this Court does not propose to examine the evidence of the case on hand. The application under Section 216 Cr.P.C. moved by the petitioner/first informant before the learned trial court was not maintainable. However, in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347, the Hon'ble Apex Court has recognized the principle that in cases where the trial Court upon a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so. 14. Accordingly, in view of the above the learned trial court is directed to proceed with the trial and decide the matter expeditiously as per the evidence brought on record. 15. With the aforesaid directions, the instant petition is disposed of. Order Date :- 21.7.2025 Aditya Tripathi Digitally signed by :- ADITYA TRIPATHI High Court of Judicature at Allahabad