S. 216 CrPC | Neither Complainant Nor Accused Has Right To Seek Alteration Of Charges; Power Exclusively Confined To Court: Allahabad HC

A bench of Justice Abdul Shahid thus set aside an order by the Additional District Judge/FTC-II, Varanasi, which allowed a complainant's application to invoke stringent provisions of the POCSO Act against the accused at a later stage of the trial.

Briefly put, the revisionist-accused (Satyam Sharma) moved the HC challenging the trial court's order accepting an application moved by the complainant seeking to alter the charges to include offences under the POCSO Act.

The revisionist-accused argued that in the investigation it had come out that the victim was a major and for this reason, the IO had specifically omitted the offence punishable under Section 3/4 of the POCSO Act in the charge-sheet.

The revisionist also submitted that he and the victim had solemnized their marriage in January 2020 and later executed a marital agreement in February 2020.

Lastly, it was argued that the law does not permit either of the parties of the case to move an application under Section 216 CrPC.

Against the backdrop of these submissions, the High Court, at the outset, pointed to significant contradictions in the victim's statements which the trial court failed to appreciate.

The single judge noted that in her statement under Section 161 CrPC, the victim stated she had been in a relationship with the accused for the "last three months" and submitted her Aadhaar card and Class VIII marksheet to prove her majority.

However, in her subsequent statement under Section 164 CrPC, she claimed the relationship began three years ago and that too, under threat.

The bench observed that the victim later alleged that a police inspector had taken her sign on blank-paper and he threatened me that she should say '3-months', instead of '3 years' in her statements.

Further complicating the prosecution's narrative was the additional statement of the complainant (the father), who, when questioned about the weapon allegedly used to threaten the victim, admitted it was made of plastic and used as a 'toy'. When asked if his daughter knew the pistol was fake, he remained silent.

Apart from these discrepancies, Justice Abdul Shahid examined the question as to whether a complainant can file an application for alteration of charge under Section 216 CrPC.

Relying on the Supreme Court's 2014 decision in the case of P. Kartikalakshmi vs. Sri Ganesh and another, the High Court observed that Section 216 CrPC is an 'enabling' provision designed solely for the Court to exercise its power under certain contingencies.

"We make it clear that no party, neither de facto complainant nor the accused or for that matter, the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 CrPC", the Court observed.

The HC emphasized that if parties were allowed to invoke this provision to seek alterations as a matter of right, "it will be well nigh impossible for the criminal court to conclude its proceedings and the concept of speedy trial will get jeopardized".

The Court further clarified that while the judiciary retains the power to alter or add a charge "at any time before judgment is pronounced" if an omission comes to its knowledge, on its own motion or based on the court's own realization of necessity. 

Hence the impugned order (dated 21.2.2025) was hereby set aside and the Criminal Revision was allowed.

Advocate Ajeet Kumar Madhesia, appeared for the revisionist.

Case title - Satyam Sharma vs. State Of U.P. And 3 Others

Case citation : 

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