SATRAJIT ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By the instant application the petitioner has assailed the order dated 21st Aug., 2018 passed by the learned Additional Sessions Judge, Fast Track 3rd Court, Barrackpore, North 24-Parganas in ST No. 3(4) of 2018 arising out of Titagarh P.S. Case No. 538 of 2012 dated 15th Sept., 2012 under section 302 of the Indian Penal Code whereby an application under section 216 of the Code of Criminal Procedure filed by the opposite party no.2 herein/defacto complainant was allowed.

(2.) Learned counsel for the petitioner submits that by an order dated 11th April, 2018 the trial court, upon perusal of the materials in the case diary, framed charge under section 306 of Penal Code against the accused/petitioner but on a subsequent date, on 21st Aug., 2018 the aforesaid charge was altered on the basis of an application under section 216 of the Code of Criminal Procedure filed by the defacto complainant/opposite party no.2 herein. By the impugned order the learned trial Judge framed charge for the offences punishable under sections 302 and 376 of Penal Code against the accused-petitioner. Placing reliance on P. Kartikalakshmi Versus Sri Ganesh and Another, 2017 3 SCC 347, learned counsel for the petitioner sought to impress that the opposite party no.2 herein/defacto complainant has no locus standi to file an application for alteration of the charge since the power under section 216 of the Code of Criminal Procedure vested in court is exclusive and the defacto complainant or the accused or the prosecution cannot seek addition or alteration of charge by filing any application as a matter of right. It has further been canvassed that the power to alter a charge is barred by section 362 of the Code of Criminal Procedure since the order of charge has attained finality so alteration or review of such a final order except for correcting a clerical or arithmetical error is impermissible. To buttress his submission, learned counsel for the petitioner placed reliance on Sabur Hossain Biswas @ Paltu Versus State of West Bengal & Others, 2008 2 CalHN 756. It has also been argued that from the post- mortem report of the deceased victim it would appear that the injuries found on the person of the victim are not sufficient to make out a case for the offence under section 302 of IPC.

(3.) Repudiating the above submissions, learned counsel for the opposite party no.2 invited the attention of this Court to paragraph 6 of the judgement in P. Kartikalakshmi (supra) relied on by the petitioner. Referring to the aforesaid relevant paragraph 6, learned counsel submits that the power vested under section 216 of the Code of Criminal Procedure though exclusive to the Court, under certain contingencies if an error or omission is brought to the notice of the Court or if it comes to the knowledge of the Court, the alteration or addition if necessary may be effected. On the point of locus standi of the defacto complainant, reference has been made to Amanullah and Another Versus State of Bihar and Others, 2016 6 SCC 699 (paragraph 19). Learned counsel for the opposite party no.2 argued that the bar under section 362 of the Code of Criminal Procedure is not applicable in view of the specific provision under section 216 Crimial P.C. which enables the Court to alter or add to any charge at any stage of the proceeding before the pronouncement of judgement. To counter the argument advanced on behalf of the petitioner on the point of alteration of charge, learned counsel for the opposite party no.2 placed reliance on paragraphs 10, 17 and 18 of the decision in Anant Prakash Sinha alias Anant Sinha Versus State of Haryana and Another, 2016 6 SCC 105 .