Harendra Singh And Others vs State Of U.P. And Another

Counsel for Opposite Party :- Devesh Kumar Shukla,Dharmesh Kumar Shukla,G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Imran Ullah, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Abhishek Shukla, Advocate holding brief of Mr. Devesh Kumar Shukla, the learned counsel representing first informant-opposite party-2.

2. Perused the record.

3. Applicant-Harendra Singh and others, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to quash the entire proceedings of the Sessions Trial No. 641 of 2019 Case Crime No. 563 of 2017 Under sections 323, 34, 307 and 504 IPC Police Station- Gabhana, District- Aligarh pending in the court of Ld. Addl. District & Sessions Judge, Court No. 9, Aligarh in pursuance of the orders framing charges, u/s 323 r/w 34 and 504 IPC dated 11.12.2019 and u/s 307 IPC dated 22.01.2024.

It is, further prayed during the pendency of the application further proceeding proceedings of the Sessions Trial No. 641 of 2019 Case Crime No. 563 of 2017 Under sections 323, 34, 307 and 504 IPC Police Station- Gabhana, District- Aligarh pending in the court of Ld. Addl. District & Sessions Judge, Court No. 9, may be stayed, and pass any other order or direction that this Hon'ble court deem fit and proper under the circumstances of the case."

4. Mr. Imran Ullah, the learned counsel for applicants submits that in the present case, the application dated 02.01.2024 for alteration of charge in terms of Section 216 Cr.P.C. was filed by first informant-opposite party-2 through his counsel. On the above premise and with reference to the provisions contained in Section 216 Cr.P.C., he submits that the said application was not maintainable as the proceedings of the trial are to be conducted by the State counsel and a private counsel representing first informant-opposite party-2 has no role to play during the course of trial in view of the prohibition contained in Section 301 Cr.P.C. To buttress his submission, he has relied upon the following decisions;-

(i). Anant Prakash Sinha Alias Anat Sinha Vs. State of Haryana and Another, (2016) 6 SCC 105,

(ii). P. Kartikalakshmi Vs. Sri Ganesh and Another, (2017) 3 SCC 347,

(iii). Application U/s 482 Cr.P.C. No. 2556 of 2023 (Nanhey Bhaiya @ Nanhan Singh and 2 Others Vs. State of U.P. and Another) decided on 31.03.2023.

(iv). Sushil Vs. State of U.P. and Another, 2023 SCC OnLine All 265.

5. The issue as to whether an application under 216 Cr.P.C. can be filed by a private counsel or not came up for consideration before a Three Judges Bench of the Apex Court in Shiv Kumar Vs. Hukum Chandra and Another, (1999) 7 SCC 467. The ratio laid down in aforementioned judgment was subsequently explained in Anant Prakash Sinha Alias Anat Sinha Vs. State of Haryana and Another, (2016) 6 SCC 105, wherein the Court has observed as under in paragraphs 21 and 22;-

"21. Presently to the second aspect. Submission of Mr. Sharan is that the learned Magistrate could not have entertained the application preferred by the informant, for such an application is incompetent because it has to be filed by the public prosecutor. In this regard, he has laid stress on the decision in Shiv Kumar v. Hukam Chand and another[21]. In the said case, the grievance of the appellant was that counsel engaged by him was not allowed by the High Court to conduct the prosecution in spite of obtaining a consent from the concerned Public Prosecutor. The trial court had passed an order to the extent that the advocate engaged by the informant shall conduct the case under the supervision, guidance and control of the Public Prosecutor. He had further directed that the Public Prosecutor shall retain with himself the control over the proceedings. The said order was challenged before the High Court and the learned single Judge allowing the revision had directed that the lawyer appointed by the complainant or private person shall act under the directions from the Public Prosecutor and may with the permission of the court submit written arguments after evidence is closed and the Public Prosecutor in-charge of the case shall conduct the prosecution. This Court referred to Sections 301, 302(2), 225 CrPC and various other provisions and came to hold as follows:-

"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter."

22. Being of this view, this Court upheld the order passed by the High Court. The said decision is, in our opinion, is distinguishable on facts. The instant case does not pertain to trial or any area by which a private lawyer takes control of the proceedings. As is evident, an application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The court could have done it suo motu. In such a situation, we do not find any fault on the part of learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his prima facie satisfaction. There is no error in the said prima facie view. We also do not perceive any error in the revisional order by which it has set aside the charge framed against the mother-in-law. Accordingly, we affirm the order of the High Court in expressing its disinclination to interfere with the order passed in revision. We may clarify that the entire scrutiny is only for the purpose of framing of charge and nothing else. The learned Magistrate will proceed with the trial and decide the matter as per the evidence brought on record and shall not be influenced by any observations made as the same have to be restricted for the purpose of testing the legal defensibility of the impugned order."

6. It is thus evident that the Apex Court has itself held that the application filed on behalf of the first informant under Section 216 Cr.P.C. is only an information to the Court to add or alter the charge. Ultimately, it is for the Court to decide whether in the facts and circumstances of the case, a new charge needs to be framed or the charges already framed require to be altered. The said exercise has to be undertaken by the Court upon it's own prima-facie satisfaction. Consequently, the Bench observed that even if the charges were altered by the Trial Judge on the basis of an application under Section 216 Cr.P.C. filed by the first informant, the same cannot be said to be such an error so as to vitiate the trial.

7. Upon perusal of record, this Court finds that P.W.-1, in his deposition before Court below, has clearly stated that firearm was used by accused/applicants in the crime in question with intention to cause death. In view of the recital occurring in the statement-in-chief of P.W.-1, no illegality can be said to have been committed by Court below in framing additional charge under Section 307 IPC. An offence under Section 307 IPC stands attracted not by the degree of injury sustained by the injured but on the principle that assault was committed with intention to cause death. As such, no illegality can be attached to the order impugned, whereby Court below has taken a decision to frame additional charge under Section 307 IPC against applicants. The Court further finds that actual charges under Section 307 IPC have not yet been framed against applicants as the subsequent framing of charge order passed by Court below has not been brought on record. In view of above, the present application is misconceived at this stage.

8. When confronted with above, the learned counsel for accused-applicants could not overcome the same.

9. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this court finds that applicants have rushed to this Court even when no framing of charge order has been passed by Court below framing additional charges under Section 307 IPC against accused-applicants. Furthermore, the objections raised by the learned counsel for applicants as noted herein above, are unsustainable in law and fact in view of the clarification made by the Apex Court itself in paragraphs 21 and 22 of the report in the case of Anant Prakash Singh @ Anant Sinha (Supra). Furthermore, the commission of an offence under Section 307 IPC is clearly reflected in the deposition of PW-1. As such, this Court does not find any good ground to entertain the present application.

10. As a result, the present application fails and is liable to be dismissed.

11. It is, accordingly, dismissed.

Order Date :- 20.8.2024

YK