The Karnataka High Court has held that under Section 216 of the Criminal procedure Code (Cr.P.C) the trial court can alter the charge framed even if the trial has progressed to a large extent.
A single judge bench of Justice M Nagaprasanna made the observation while dismissing a petition filed by the one accused Ananda seeking to quash the order of the trial court date 31-12-2021 by which the court has added a charge under Section 7 of the POCSO Act apart from the allegations which were initially levelled and punishable under Sections 366A, 506 and 34 of the IPC.
The bench said,
"The submission of the learned counsel appearing for the petitioner that the charge could not have been altered after three years of commencement of trial is unacceptable, as the language employed under Section 216 of the Cr.P.C. is unequivocal that a Court trying a case is empowered to alter the charge. The usage of the word 'may' only deploy judicial discretion to be exercised while altering the said charge. Therefore, the submission that charge cannot be altered after the trial has progressed to a large extent is rejected."
A complaint came to be registered on 01-12-2016 on an allegation that when the victim was going to the school at Masthi, the petitioner is said to have asked her to sit on the bike to drop her at the school. The victim sits on the bike and they reached Masthi Dinne where accused 2 and 3 along with accused No.1 kidnapped and taken the victim to Halasumaranadoddi. The purpose of such kidnap was to get her married to accused No.4.
The complaint further narrates that she escaped from the clutches of the accused and contacted the complainant and her relatives. Thereafter, a complaint came to be registered against all the accused including the petitioner for offences punishable under Sections 366A, 506 and 34 of the IPC. Following an application made by the prosecution on January 25, 2021 the court under Section 216 of the Cr.P.C. altered the charge and included section 7 of the POCSO Act.
Petitioner submitted that the order passed by the sessions judge is contrary to law as the charge is altered after three years of commencement of trial which could not have been done and for such alteration of charge there was no evidence but merely on the statement of the victim which does not touch upon the offence punishable under Section 7 of the Act.
Further, the charge that is added casts grave prejudice to the petitioner. He would submit that the victim was taken only to get her married to accused No.4 and nobody has indulged in any act that would become an offence punishable under the Act.
Respondent on the other hand argued that the charge can be altered by the Sessions Judge at any time and alteration of charge now made does indicate the offence punishable under the Act.
The bench referred to section 216 of CrPC which reads thus, Court may alter charge.—(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
It then observed,
"This power of alteration of the charge, as found in the statute, can be exercised by any Court, before pronouncement of the judgment, which would mean after the matter is reserved for its judgment the charge can be altered."
Reliance was also placed on the Supreme Court judgement in the case of Anant Prakash Sinha @ Anant Sinha V. State Of Haryana & Anr. and Dr. Nallapareddy Sridhar Reddy V. State Of Andhra Pradesh & Ors., where this law was settled.
It then held, "In the light of the judgments rendered by the Apex Court as afore-quoted, the submission of the learned counsel appearing for the petitioner that the charge could not have been altered after three years of commencement of trial is unacceptable."
The court also rejected the prayer seeking to interfere with addition of section 7 of the Act. It perused the statement of the victim recorded in examination in chief and said,
"The very fact that the victim child has deposed in the examination-in-chief and sustained the same in the cross-examination would indicate that it is a matter for trial, as this Court cannot at this juncture consider as to what has transpired at the time when the victim was carried to a particular place and the statement of the victim being that she was touched inappropriately in all places of her body. After the evidence afore-quoted the prosecution seeks to incorporate offences punishable under Section 7 of the Act."
Further it said, "Section 7 of the Act which pertains to "sexual assault" is on its appearance in two parts. The first part of the section deals with acts of touching specific sexual parts of the body with sexual intent. The second part speaks about "any other act" done with sexual intent which involves physical contact but without penetration."
It added, "Therefore, the second part of Section 7 of the Act is prima facie applicable in the case at hand qua the evidence of the victim child. The child speaks of touching by the accused at inappropriate places of her body."
Accordingly it dismissed the petition.
Case Title: Ananda v. State Of Karnataka
Case No: CRIMINAL PETITION No.1829 OF 2022
Citation: 2022 LiveLaw (Kar) 200
Date of Order: 08TH DAY OF JUNE, 2022
Appearance: Advocate BASAVARAJU T.A for petitioner; HCGP K.S.ABHIJITH For R1