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Judgment
Heard Sri Samanvay Dhar Dwivedi and Sri Kartikay Singh, the learned counsel for the petitioner, Ms. Nikita Mishra, learned A.G.A. for the State and perused the records.
By means of the instant application filed under Section 482 Cr.P.C./Section 528 BNSS, the petitioner has challenged the validity of an order dated 31.08.2026, passed by learned IV Additional Chief Judicial Magistrate/Special Judge (MP/MLA), Raebareli in Criminal Case No. 1622 of 2022, whereby the petitioner’s application under Section 216 Cr.P.C. seeking alteration of charge has been rejected.
The aforesaid case has been instituted on the basis of an F.I.R. lodged on 12.06.2007 with five case crime numbers, alleging that the petitioner had got three arms licenses issued, whereas a person can hold maximum two fire arms, and that he had in his possession ammunition exceeding the permissible limits.
When the trial reached the stage of final submissions, the petitioner filed an application under Section 216 Cr.P.C. stating that the evidence led by the prosecution establishes that a case for trial of the offences under Sections 25, 27 and 30 of the Arms Act was not made out and a case for trial of the offence under Section 19 of the Arms Act only was made out. The petitioner prayed for alteration of the charges by deleting the charges under Sections 25, 27 and 30 of the Arms Act and converting it to Section 19 of the Arms Act.
The learned trial court held that the petitioner had got three arms licenses issued in violation of the provisions contained in the relevant Government Order. Although he subsequent surrendered one weapon, but it would not cure the illegality. The trial Court observed that recovery of cartridges in excessive quantity is also a serious offence. The petitioner had contended that the recovered cartridges have not been produced by the prosecution and the trial Court held that it is a matter of evidence and will be appreciated at the conclusion of trial.
Assailing validity of the aforesaid order, the learned counsel for the petitioner has submitted that the observation made by the trial court in the impugned order, that the petitioner had committed an offence by obtaining three arms licenses and the said illegality is not cured by the subsequent surrender of one weapon, is absolutely perverse as the petitioner had obtained three weapon licenses prior to the year 2019 when the same was permissible in law. The policy was amended in the year 2019 and the maximum number of weapons that could be held by a single individual was reduced to two. After change of the policy, the petitioner surrendered one firearm and continued to hold two firearms under the licenses granted by the Government. He has submitted that the aforesaid observation made in the impugned order renders the same unsustainable in law and liable to be set aside.
The learned A.G.A. has submitted that it is settled law that while trying a person for an offence, if the trial court comes to a conclusion that the particular offence for which the accused is charged is not made out and any other offence carrying a lesser sentence is made out, the trial court can convict and sentence the accused person for the other offence carrying a lesser sentence without framing a charge for the said offence.
In support of his contention, the learned A.G.A. has placed reliance on the judgment in the case of Paranagouda v. State of Karnataka: (2024) 18 SCC 793.
Before proceeding to examine the rival contentions of the learned Counsel for the parties, it would be appropriate to have a look at the relevant the provisions contained in Cr.P.C., which are being reporduced below: -
“221.Where it is doubtful what offence has been committed.—(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2)If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustrations
(a)A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
(b)In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged with such offence.
(c)A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false. * * *
464. Effect of omission to frame, or absence of, or error in,
charge.—(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2)If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may—
(a)in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b)in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.”
In Dinesh Seth v. State (NCT of Delhi): (2008) 14 SCC 94, the Hon’ble Supreme Court has opined:
“11.A reading of the plain language of Sections 221(1) and (2) shows that if a single act or a series of acts constitute several offences and the prosecution is not certain about the particular offence then the accused can be charged with the allegation of having committed all, some or any of the offences. In such a case the accused can be convicted of the offence with which he may not have been specifically charged but evidence produced by the prosecution proves that such an offence has, in fact, been committed.
12.Section 222(1) lays down that when a person is charged with an offence consisting of several particulars and combination of only some of the particulars constituting a minor offence is proved then he can be convicted of the minor offence with which he may not have been charged. Section 222(2) lays down that when a person is charged with an offence but the facts proved constitute a minor offence then he can be convicted of the minor offence despite the fact that he may not have been charged with that offence. Sub-section (3) of Section 222 lays down that a person charged with an offence, can be convicted of an attempt to commit such offence even though a separate charge may not have been framed on that account.
13.Section 464(1) lays down that any error, omission or irregularity in the framing of charge including any misjoinder of charges, will not invalidate a finding, sentence or order by a court of competent jurisdiction unless the higher court comes to a conclusion that failure of justice has been occasioned. Sub-section (2) of Section 464 specifies the modes which can be adopted by the court of appeal, confirmation or revision, if such court is of the opinion that a failure of justice has been occasioned on account of non-framing of charge or any error, omission or irregularity in the framing of charge.”
(Emphasis Added)
The aforesaid ratio has been followed in Paranagouda v. State of Karnataka: (2024) 18 SCC 793.
The petitioner is being tried for offences under Sections 25, 27 and 30 of the Arms Act, which carry a maximum sentence of imprisonment up to 10 years. The petitioner claims that the prosecution allegations and the material make out commission of offence under Section 19 read with 25 of the Arms Act, which carries a maximum sentence of imprisonment up to six months only. In case the trial Court is satisfied that the petitioner’s contention is correct, it can convict the petitioner for the offence under Section 19 read with Section 25 of the Arms Act, although the petitioner is being tried for offences under Sections 25, 27 and 30 of the Arms Act. The trial for lesser offence would not require any additional evidence to be taken by the trial court. Therefore, rejection of the application under Section 216 Cr.P.C. claiming alteration of the charges would not caused any prejudice to the petitioner and it would not caused any failure of justice to him warranting exercise of inherent powers of this Court.
Therefore, the petition is disposed off by clarifying that the trial court shall decide the trial on its merits, keeping in view all the contentions raised by the accused person, including the contention that the prosecution evidence does not make out the charges under Sections 25, 27 and 30 of the Arms Act and the same merely make out the offence under Section 19 of the Arms Act, without being prejudiced by any observation made in the impugned order dated 31.08.2026, which would be confined for the purpose of decision of the application under Section 216 Cr.P.C. only.