Bal Kumar Patel @ Raj Kumar vs State Of U.P. Thru. Addl. Chief Secy. ...

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record.

Instant application has been filed with following main prayers:-

"i. issue appropriate order/direction to the concerned Court to forthwith decide the application preferred by the applicant under section 216 Cr. P. C. dated 21.02.2026; and

ii. stay the proceedings of Criminal Case No. 614 of 2008 till a decision on the said application in the interest of justice."

Learned counsel appearing for the applicant submits that charge sheet has been filed and charges have been framed against the applicant and the matter proceeded. He submitted that the applicant moved an application for alteration of the charge, vide application dated 21-02-2026, whereupon, the order was passed, on 09-03-2006, by observing that the application under section 216 of CrPC shall be considered prior passing the judgement and order. He added that no fruitful purpose would be served if the application under section 216 of CrPC moved by the applicant, is decided after the conclusion of the arguments and prior to the pronouncement of the judgement as the same would again stretch the period of conclusion of the trial. He further submitted that law is very clear on this issue that the accused cannot claim alteration of charge, as a matter of right under section 216 of CrPC; rather, it is the suo motto power of the court concerned. He submitted the position has been clarified vide the judgement and order passed by the Apex Court in Directorate of Revenue Intelligence versus Raj Kumar Arora and others reported in 2026 2 SCC 401, and has referred paragraph 168 of the said judgment, which is quoted hereunder:-

"168. The Court may alter or add to any charge either upon its own motion or on an application by the parties concerned. Therefore, such a power can be invoked by the court suo motu as well. This power under Section 216 CrPC is exclusive to the court concerned and no party can seek such an addition or alteration of charge as a matter of right by filing an application. It would be the trial court which must decide whether a proper charge has been framed or not, at the appropriate stage of the trial. On a consideration of the broad probabilities of the case, the total effect of the evidence and documents adduced, the trial court must satisfy itself that the exercise of power under Section 216 is necessary. The provision has been enacted with the salutary object to ensure a fair and full trial to the accused person(s) in each case."

Referring the aforesaid, he submitted that the Hon'ble Apex Court has held that the court may alter or add to any charge either upon its own motion or on application by the parties concerned, subject to such application cannot be moved, claiming as matter of right. He added that the present applicant is not pressing the application as a matter of right, for altering the charges while invoking the powers under section 216 of CrPC, rather, he has brought the reasons and grounds on the basis of which, charges could be altered.

He contends that in place of considering the application, the same has been kept pending till the final judgement is passed. He added that the order passed by the trial court dated 09-03-2026 is not justiceable, even that goes against the judgement and order passed by the Apex Court in case of Directorate of Revenue Intelligence(supra), therefore, submission is that the trial court may be directed to consider the grounds raised in the application moved by the applicant for alteration of the charge, suo moto by the trial court.

Further, the counsel for the applicant has also emphasized the law rendered in the case of Radhey Lal versus State of U.P. & Anr. reported in 2025 5 ILRA 813, and referred paragraph 24 of the said judgment, which is quoted herein under:-

"24. It is apt to say that law is settled in the case of P. Kartikalakshmi (supra) and Anant Prakash Sinha (supra) that no claim can be made by the parties for alteration of charge as a matter of right but there seems to be no restriction or obstacle to move application for bringing the omission or error in framing of the charges before the trial court and in this even, this should be upto the wisdom of such trial court to be aware of the error or omission, if any, and if required, it may invoke suo motu power to alter such charges."

Referring the aforesaid, he submitted that the case of the present applicant is squarely covered with the ratio of aforenoted judgments.

On the other hand, learned counsel appearing for the State has opposed the contention aforesaid, but he has failed to refute that how the trial court has passed the order by keeping the application under section 216 of Cr.P.C. moved by the applicant pending, waiting for the final judgement to be passed.

Upon considering the submissions of counsel for the parties, it transpires that the application has been moved by the applicant in the month of February 2026, before the trial court, under section 216 CrPC. This court is aware of the law rendered by the Apex Court in the case of P. Kartikalakshmi vs Sri Ganesh reported in (2017) 3 SCC 347, that the accused cannot claim the alteration in the charges, as a matter of right. The subsequent law, rendered by the Apex Court, in Directorate of Revenue Intelligence(supra), is that there is no bar to move an application before the trial court under section 216 of CrPC by the accused though the ratio has rendered in the case of P. Kartikalakshmi(supra), has been reiterated that such accused cannot claim the alteration of the charge as a matter of right. I have also considered the case of Radhe Lal(supra).

When this court examines the contention of counsel for the applicant, it is apparent that he wants that his application under section 216 of CrPC be considered in the light of judgments aforenoted. This Court finds that the application was moved in the month of February 2026 and the observations made in the order dated 09.03.2026, is apparent that the such application shall remain pending and would be disposed of, after the conclusion of the arguments of counsel for the parties, till the final judgement is passed. The very purport of alteration of the charge is that the trial court has all power to alter the charge prior to the judgment is pronounced, but that does not mean that the trial court, after filing of the application under section 216 of CrPC, will wait for conclusion of the arguments and the period when the court is going to pronounce the judgment. In fact, if the court will wait for deciding such application or applying its mind for alteration of charge by invoking the powers under Section 216 of CrPC, the inordinate delay is caused in pronouncement of the judgment and conclusion of the trial, thus. it is better to decide the application, if it is filed by the accused in the meantime as there seems to be no hardship in deciding such application in the present case.

Ergo, the application finds merit, thus, the trial court is directed to decide the application of the applicant moved under Section 216 of CrPC, on 21.02.2026, within a period of four weeks from the date, a certified copy of this order is produced before it, in light of P. Kartikalakshmi(supra) and Directorate of Revenue Intelligence(supra).

The present application is allowed in light of the aforesaid observations.

(Shree Prakash Singh,J.)

May 7, 2026

Mayank