Jitendra Alias Pintu vs State Of Uttarakhand & Others

N.S. Dhanik, J

Mr. Rajveer Singh, Advocate, for the accused applicant.

Mr. S.K. Chaudhary, Deputy Advocate General, assisted by Ms. Farida Siddiqui, Brief Holder for the State.

This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred with prayer to modify the order dated 17.4.2018 passed by Additional

Chief Judicial Magistrate, Haridwar in Criminal Miscellaneous Case No. 3 of 2018, State v. Narendra Kumar & Others, by adding Section 7/8 of the

POCSO Act and 395/397/376 read with Sections 511/354/354(b) IPC and also the order dated 3.8.2019 passed by the Judicial Magistrate, Haridwar

and summon the accused.

Heard learned Counsel for the applicant and the learned State Counsel and perused the papers on record.

Earlier also, the applicant has filed a Criminal Miscellaneous Application No. 813 of 2018, under Section 482 CrPC, with the same prayer, which was

disposed of on 13.6.2019 by a coordinate Bench of this Court by passing the following order:

“………..

This criminal miscellaneous application under Section 482 of Cr.PC has been filed to modify the impugned order dated 17.04.2018 passed by

Additional Chief Judicial Magistrate, Haridwar in Criminal Misc. Case No. 3 of 2018, “State Vs. Narendra Kumar & Others†by adding Section

7/8 POCSO Act and seeking order from this Court to direct the Chief Judicial Magistrate to summon the accused under Section 323, 325, 427, 452,

504, 506 IPC & 7/8 POCSO Act.

It is argued by the learned counsel for the applicant that initially applicant moved an application under Section 156(3) Cr.P.C. before the Special Judge

POCSO Haridwar. After hearing the matter the Special Judge passed an order on 17.03.2017 for registering the case against the accused. After

investigation a charge sheet was filed under Sections 323, 325, 427, 452, 504 and 506 IPC against Narender Kumar, Ranveer and Devraj (Resp. nos.

2, 4 & 5 respectively). The cognizance was taken by the learned Magistrate. Thereafter, applicant moved an application under Section 190(1)(b) of

Cr.P.C. for taking cognizance under Sections 395, 397, 376, 511, 354, 354(b) and under Section 7/8 & 9/10 POCSO.

After hearing the parties, learned Additional Chief Judicial Magistrate rejected the application under Section 190(1)(b) vide order dated 17.04.2018

and summoned the accused under Section 323, 325, 427, 452, 504 and 506 IPC.

Feeling aggrieved, the present criminal misc. application under Section 482 Cr.P.C. has been filed.

Learned counsel for the applicant argued that charges were not framed properly by the competent Court.

During the course of the hearing it is submitted by the learned counsel for the opposite party that the charges have already been framed by the Trial

Court.

Although the charges have been framed by the Trial Court, as per the charge sheet submitted by the Investigating Officer but if any another offence

is made out on the basis of the evidence collected during the investigation, as per Section 216 Cr.P.C., the Court may alter or add to any charge at any

time before judgment is pronounced.

From the perusal of Section 216 Cr.P.C., the concerned Court has a power to frame charges at any time before pronouncement of judgment.

In these circumstances, the present criminal misc. application under Section 482 Cr.P.C. is disposed of with the direction that the applicant has a right

to move an application before the concerned Court for framing the additional charges, as provided under Section 216 Cr.P.C. If any application is

moved by the applicant for framing the additional charges, the concerned Court has a power to frame the additional charges on the basis of the

evidence produced before it.â€​

In view of the liberty granted by this Court by the aforesaid order dated 13.6.2019, the applicant moved an application before the Court below to add

Sections 7/8 and 9/10 of the POCSO Act and 395, 397, 376, 511, 354 and 354(b) IPC and frame the additional charges accordingly. This application

has again been rejected by the Court below vide order dated 3.8.20019.

Learned Counsel for the applicant would contend that there is credible evidence to add the aforementioned sections and summon the accused persons

to face the trial.

Learned Court below has rejected the prayer of the applicant by observing that there is no legal ground or evidence to take cognizance of the offences

as prayed for by the applicant. The Court below also observed that the order dated 17.4.2018, whereby this prayer of the applicant was earlier

rejected, has not been set aside by the High Court. The Court below further observed that it lacked jurisdiction to modify the said order and the

detailed order on the application of the applicant has already been passed and there is no evidence to accept the prayer of the applicant.

Having heard the rival contentions and on perusal of the materials on record, I find no substance in this C482 application. After investigation, police

filed the chargesheet under Sections 323, 325, 427, 452, 504 and 506 IPC and since there was no evidence to file the chargesheet under Sections 7/8

and 9/10 of the POCSO Act and 395, 397, 376, 511, 354 and 354(b) IPC, the chargesheet under these sections was not filed. In these facts and

circumstances and in the absence of any evidence or legal ground to add the said sections and accordingly frame the charges, the Court below has

rightly rejected the prayer of the applicant. Hence, this Court is not inclined to interfere in the matter.

Consequently, this C482 application is hereby rejected.