DR NALLAPAREDDY SRIDHAR REDDY versus THE STATE OF ANDHRA PRADESH & ORS on 21 January 2020

1. This appeal arises from the judgment of a Single Judge of theHigh Court of Andhra Pradesh dated 6 March 2019. A revision petition[1]filed by the fourth respondent against an order of the Additional JuniorCivil Judge, Sattenapalli was allowed and directions were issued for theframing of charges against the appellant under Sections 406 and 420 ofthe Indian Penal Code 1860[2].

2. On 10 March 2011, a First Information Report[3] was lodged bythe fourth respondent, who is the father-in-law of the appellant, allegingthat the appellant and the members of his family had harassed his daughterwith demands for money and transfer of land in their names. The FIRrecites that the appellant and the daughter of the fourth respondent gotmarried in 2003. Allegedly, in 2006 the appellant and his family refusedto take the complainant’s daughter to the United Kingdom where herhusband was staying unless her Stridhana property was transferred intheir names.

3. On 30 June 2012, a charge-sheet was filed against the appellantand his parents for offences under Section 498A of the IPC along withSections 3 and 4 of the Dowry Prohibition Act 1961[4]. The investigatingofficer, upon receipt of additional information about the commission ofother offences by the appellant, obtained permission from the Trial Courtfor further investigation. Based on the statements of various witnessesunder Section 161 of the Code of Criminal Procedure 1973[5] with respectto the appellant raising a demand of Rs 5,00,000/- for securing a job for 1 Criminal Revision Case no 2712 of 2017

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Athe complainant’s daughter as a doctor in the United Kingdom, anadditional charge-sheet was filed on 12 April 2013 in respect of thealleged commission of offences under Sections 406 and 420 of the IPC.The Trial Court framed charges against the appellant only for offencesmentioned in the original charge-sheet dated 30 June 2012 under Section498A of the IPC along with Sections 3 and 4 of the Dowry ProhibitionBAct. The trial commenced and after the recording of evidence andconclusion of arguments, the case was reserved for judgment on 13February 2017.

4. On 13 February 2017, an application was filed by the PublicProsecutor under Section 216 of CrPC for alteration of charge statingCthat even though an additional charge-sheet had been filed by theinvestigating officer on 12 April 2013 implicating the appellant for crimesunder Sections 406 and 420, charges were not framed by the trial judgeunder those provisions. On 21 February 2017, the Trial Court allowedthe application and charges under Sections 406 and 420 were framedDagainst the appellant. The Trial Court observed that the court only hadthe opportunity of going through the original charge-sheet dated 30 June2012 and not the additional charge-sheet dated 12 April 2013 that waskept in a separate bundle. Aggrieved by the order of the Trial Court, theappellant instituted revisional proceedings before the High Court.

E5. On 1 June 2017, a Single Judge of the High Court allowed therevision petition[6] and set aside the order of the Trial Court framingadditional charges on the ground of procedural irregularity but left itopen to the Trial Court to frame, if at all necessary, any additional chargesafter providing both the sides with an opportunity of hearing and recallingwitnesses.F

6. The Trial Court after hearing arguments on behalf of both thesides and perusing the material available on record concluded that theingredients for offences under Sections 406 and 420 IPC were not madeout and by an order dated 11 October 2017 rejected the application forframing additional charges. The fourth respondent filed a revision petitionGbefore the High Court against the above order of the Trial Court.

7. On 6 March 2019, a Single Judge of the High Court allowedthe revision petition[7] and set aside the Trial Court’s order. The HighCourt held that the Trial Court while rejecting the application under Section 6 Criminal Revision Case no 661 of 2017H7 Criminal Revision Case no 2712 of 2017 Criminal Revision Case no 2712 of 2017

7 Criminal Revision Case no 2712 of 2017 Criminal Revision Case no 2712 of 2017

DR NALLAPAREDDY SRIDHAR REDDY v. THE STATE OF ANDHRAPRADESH & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

216 did not disclose the reasons for concluding that the ingredients ofSections 406 and 420 were not attracted and only touched upon thelapses of the prosecution in not seeking an alteration of charges duringthe course of the trial. The High Court while directing the framing ofadditional charges under Sections 406 and 420 of IPC evaluated thewitness statements brought on record during the course of investigationand referred to the additional charge-sheet filed on 12 April 2013.

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8. Aggrieved by the order dated 6 March 2019 of the High Court,the appellant moved this Court under Article 136 of the Constitution.

9. Ms Anitha Shenoy, learned Senior Counsel appearing on behalfof the appellant has urged the following submissions:

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(a) An application for alteration of charge under Section 216was intentionally filed on the date of the pronouncement ofjudgment to unnecessarily delay the proceedings; (b)The FIR dated 10 March 2011, filed by the fourth respondent,has no mention of any demand or payment of Rs 5,00,000/-Dto the appellant for securing a job for the complainant’sdaughter. The FIR only refers to facts with respect to allegedoffences under Section 498A of the IPC and Section 4 ofthe Dowry Prohibition Act; E

(c) Both the fourth respondent and his daughter being doctorsare aware that a doctor’s job cannot be secured in the UnitedKingdom without clearing an entrance test. Accordingly, thequestion of paying Rs 5,00,000/- to the appellant for securinga job does not arise; F

(d) PW 6, who is a friend of the fourth respondent is an interestedwitness as they have been friends for the past twenty-fiveyears; (e)PW 5, who is the brother-in-law of the fourth respondent, isan interested witness and during the cross-examination hewas unable to mention the date, month and year on whichthe alleged amount was paid to the fourth respondent forpayment to the appellant. There exists no documentarymaterial to indicate that the fourth respondent borrowedmoney from PW 5; and G

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A(f)The ingredients of Sections 406 and 420 have not beenfulfilled. At the stage of framing of charge, the court is notexpected to go deep into the probative value of the materialon record. The court only needs to consider whether there isground for presuming that the offence has been committed(Onkar Nath Mishra v The State[8]). There exists a fineBdistinction between cheating and a mere breach of contract.It depends upon the intention of the accused at the time ofinducement which may be judged by his subsequent conduct.To hold a person guilty of cheating, it is necessary to showexistence of fraudulent or dishonest intention at the time ofCmaking the promise. (Hridaya Ranjan Prasad Verma vState of Bihar[9]).

10. On the other hand, Mr A T M Ranga Ramanujam, learnedSenior Counsel, appearing on behalf of the fourth respondent submittedthus:

D(a)The fourth respondent did not intend to delay thepronouncement of the decision. The additional charge sheetand the cognizance order had been in place before the TrialCourt since 2013. The additional charge-sheet missed theattention of the Magistrate because it was kept in a separateEdocket; (b)The charge can be altered by the court at any time beforethe pronouncement of the judgment based on the materialsavailable or subsequently brought on record during the courseof the trial (Anant Prakash Sinha v State of Haryana[10]).FIn the present case, the investigating officer filed theadditional charge-sheet only after he received additionalinformation during the course of investigation in relation tooffences under Sections 406 and 420 of the IPC. Though,the appellant was initially charged in pursuance of the originalcharge-sheet dated 30 June 2012, subsequent evidenceGbrought on record does not restrict the court from alteringthe charge; and 8 (2008) 2 SCC 5619 (2000) 4 SCC 168H10 (2016) 6 SCC 105

(c) At the time of framing of charge, it is sufficient if the court isable to form a presumption regarding the existence ofingredients constituting the offence found upon the materialplaced before it. It is not necessary for the court to undertakean analysis of the credibility, veracity or evidentiary value ofthe materials placed before it (Sajjan Kumar v CentralBureau of Investigation[11]).

11. The rival submissions fall for our consideration.

12. In the present case, the investigating officer upon receipt ofadditional information about the alleged commission of offences underSections 406 and 420 by the appellant, obtained permission for furtherinvestigation. Statements of witnesses recorded under Section 161 ofCrPC indicated that the appellant had raised a demand of Rs 5,00,000/-for securing a doctor’s job for the complainant’s daughter in the UnitedKingdom. After investigation, an additional charge-sheet was filed on 12April 2013 against the appellant for offences under Sections 406 and420 of the IPC. This is evident from the counter affidavit filed by thefourth respondent before this Court which contains the docket order ofthe Additional Junior Civil Judge, Sattenapalli. In an order dated 16 August2013 it was stated:

“... Additional charge sheet filed by investigating officerthrough learned APP. This case was taken on file u/s 498 -A ofIPC and Sec. 4 of D.P. Act against A.1 to A.3 on 28.09.2012.Perused the Addl. Charge Sheet and other availablematerial on record. Heard learned APP. It is a fit case totake on file Section 406 and 420 of IPC also against A.1.Call on 16.09.2013.”

The order dated 13 February 2017 stated thus:

“... In the case on hand, initially charge sheet was filed for theoffence u/s 498-A IPC, Sec. 3 & 4 of the Dowry Prohibition Actand the cognizance was taken for those offences by mypredecessor. Later an additional charge sheet was filed bythe investigation officer in this case and my predecessorwas please to take cognizance of offences punishable u/s A

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A406, 420 IPC also on 16.08.2013. But the fact of filing ofadditional charge sheet was not brought to the notice ofthis Court and the additional charge sheet was kept as aseparate bundle in the record. So, charges were framedagainst the accused only for the offence punishable u/s 498-A IPC and Sec. 3, 4 of the Dowry Prohibition Act and Sect.B406 and 420 of IPC were ignored. This fact came out to thenotice of this Court while this Court has gone through the entirerecord after hearing arguments for disposal of the case. On13.02.2017 the learned Asst. Public Prosecutor has also filed apetition u/s 216 of CrPC, with a prayer to add Section 406, 420 ofCIPC and to frame charges for those offences also...”

13. It is evident from the record that the earlier Additional JuniorCivil Judge perused the additional charge-sheet and took cognizance ofoffences under Sections 406 and 420 of the IPC. However, at the timeDof framing charges, the additional charge-sheet was not brought to thenotice of the court and the framing of charges against the appellantunder Sections 406 and 420 was not considered. Therefore, the appellantwas charged only for offences under Section 498A of the IPC alongwith Sections 3 and 4 of the Dowry Prohibition Act. It was when anEapplication under Section 216 of CrPC was filed by the public prosecutoron 13 February 2017 that it was brought to the notice of the Trial Judgethat charges under Sections 406 and 420 were not framed.

14. In order to adjudicate upon the dispute, it is necessary to referto Section 216 of CrPC:F“216. Court may alter charge.—(1) Any court may alter or addto any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explainedto the accused.

(3) If the alteration or addition to a charge is such that proceedingGimmediately with the trial is not likely, in the opinion of the court,to prejudice the accused in his defence or the prosecutor in theconduct of the case, the court may, in its discretion, after suchalteration or addition has been made, proceed with the trial as ifthe altered or added charge had been the original charge.

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DR NALLAPAREDDY SRIDHAR REDDY v. THE STATE OF ANDHRAPRADESH & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

(4) If the alteration or addition is such that proceeding immediatelywith the trial is likely, in the opinion of the court, to prejudice theaccused or the prosecutor as aforesaid, the court may either directa new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one forthe prosecution of which previous sanction is necessary, the caseshall not be proceeded with until such sanction is obtained, unlesssanction has been already obtained for a prosecution on the samefacts as those on which the altered or added charge is founded.”

15. Section 216 appears in Chapter XVII of the CrPC. Under theprovisions of Section 216, the court is authorised to alter or add to thecharge at any time before the judgment is pronounced. Whenever suchan alteration or addition is made, it is to be read out and explained to theaccused. The phrase “add to any charge” in Sub-Section (1) includesaddition of a new charge. The provision enables the alteration or additionof a charge based on materials brought on record during the course oftrial. Section 216 provides that the addition or alteration has to be done“at any time before judgment is pronounced”. Sub-Section (3) providesthat if the alteration or addition to a charge does not cause prejudice tothe accused in his defence, or the persecutor in the conduct of the case,the court may proceed with the trial as if the additional or alternativecharge is the original charge. Sub-Section (4) contemplates a situationwhere the addition or alteration of charge will prejudice the accused andempowers the court to either direct a new trial or adjourn the trial forsuch period as may be necessary to mitigate the prejudice likely to becaused to the accused. Section 217 of the CrPC deals with recalling ofwitnesses when the charge is altered or added by the court aftercommencement of the trial.

16. The decision of a two-judge Bench of this Court inP Kartikalakshmi v Sri Ganesh[12], dealt with a case where during thecourse of a trial for an offence under Section 376 of the IPC, anapplication under Section 216 was filed to frame an additional chargefor an offence under Section 417 of the IPC. Justice F M IbrahimKalifulla, while dealing with the power of the court to alter or add anycharge, held:

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A“6. ... Section 216 CrPC empowers the Court to alter or add anycharge at any time before the judgment is pronounced. It is nowwell settled that the power vested in the Court is exclusive to theCourt and there is no right in any party to seek for such additionor alteration by filing any application as a matter of right. It maybe that if there was an omission in the framing of the chargeBand if it comes to the knowledge of the Court trying theoffence, the power is always vested in the Court, as providedunder Section 216 CrPC to either alter or add the chargeand that such power is available with the Court at any timebefore the judgment is pronounced. It is an enablingCprovision for the Court to exercise its power under certaincontingencies which comes to its notice or brought to itsnotice. In such a situation, if it comes to the knowledge ofthe Court that a necessity has arisen for the charge to bealtered or added, it may do so on its own and no order need tobe passed for that purpose. After such alteration or addition whenDthe final decision is rendered, it will be open for the parties towork out their remedies in accordance with law.”

17. In Anant Prakash Sinha v State of Haryana[13], a two judgeEBench of this Court dealt with a situation where for commission ofoffences under Sections 498A and 323 of the IPC, an application wasfiled for framing an additional charge under Section 406 of the IPCagainst the husband and the mother-in law. After referring to variousdecisions of this Court that dealt with the power of the court to alter acharge, Justice Dipak Misra (as the learned Chief Justice then was),Fheld:

“18. ... the court can change or alter the charge if there is defector something is left out. The test is, it must be founded on thematerial available on record. It can be on the basis of thecomplaint or the FIR or accompanying documents or theGmaterial brought on record during the course of trial. Itcan also be done at any time before pronouncement ofjudgment. It is not necessary to advert to each and everycircumstance. Suffice it to say, if the court has not framed acharge despite the material on record, it has the jurisdiction H13 (2016) 6 SCC 105

DR NALLAPAREDDY SRIDHAR REDDY v. THE STATE OF ANDHRAPRADESH & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

to add a charge. Similarly, it has the authority to alter thecharge. The principle that has to be kept in mind is that thecharge so framed by the Magistrate is in accord with thematerials produced before him or if subsequent evidencecomes on record. It is not to be understood that unless evidencehas been let in, charges already framed cannot be altered, for thatis not the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspectalso has to be kept in mind. It is obligatory on the part of the courtto see that no prejudice is caused to the accused and he is allowedto have a fair trial. There are in-built safeguards in Section 216CrPC. It is the duty of the trial court to bear in mind that noprejudice is caused to the accused as that has the potentiality toaffect a fair trial...”

18. In CBI v Karimullah Osan Khan[14], this Court dealt with acase where an application was filed under Section 216 of CrPC duringthe course of trial for addition of charges against the appellant undervarious provisions of the IPC, the Explosives Act 1884 and the Terroristand Disruptive Activities (Prevention) Act 1987. Justice K S PRadhakrishnan, speaking for the Court, held thus:

“17. Section 216 CrPC gives considerable power to the trialcourt, that is, even after the completion of evidence,arguments heard and the judgment reserved, it can alterand add to any charge, subject to the conditions mentionedtherein. The expressions “at any time” and before the“judgment is pronounced” would indicate that the poweris very wide and can be exercised, in appropriate cases, inthe interest of justice, but at the same time, the courts should alsosee that its orders would not cause any prejudice to the accused.

18. Section 216 CrPC confers jurisdiction on all courts, includingthe Designated Courts, to alter or add to any charge framed earlier,at any time before the judgment is pronounced and sub-sections(2) to (5) prescribe the procedure which has to be followed afterthat addition or alteration. Needless to say, the courts canexercise the power of addition or modification of charges 14 (2014) 11 SCC 538

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1128SUPREME COURT REPORTS

Aunder Section 216 CrPC, only when there exists somematerial before the court, which has some connection orlink with the charges sought to be amended, added ormodified. In other words, alteration or addition of a chargemust be for an offence made out by the evidence recordedduring the course of trial before the court.”

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(Emphasis supplied)

19. In Jasvinder Saini v State (Govt of NCT of Delhi)[15], thisCourt dealt with the question whether the Trial Court was justified inadding a charge under Section 302 of the IPC against the accused personsCwho were charged under Section 304B of the IPC. Justice T S Thakur(as he then was) speaking for the Court, held thus:

“11. A plain reading of the above would show that the court’spower to alter or add any charge is unrestrained providedsuch addition and/or alteration is made before the judgmentDis pronounced. Sub-sections (2) to (5) of Section 216 deal withthe procedure to be followed once the court decides to alter oradd any charge. Section 217 of the Code deals with the recall ofwitnesses when the charge is altered or added by the court aftercommencement of the trial. There can, in the light of the above,be no doubt about the competence of the court to add or alter aEcharge at any time before the judgment. The circumstances inwhich such addition or alteration may be made are not,however, stipulated in Section 216. It is all the same tritethat the question of any such addition or alternation wouldgenerally arise either because the court finds the chargeFalready framed to be defective for any reason or becausesuch addition is considered necessary after thecommencement of the trial having regard to the evidencethat may come before the court.”

G20. From the above line of precedents, it is clear that Section 216provides the court an exclusive and wide-ranging power to change oralter any charge. The use of the words “at any time before judgment ispronounced” in Sub-Section (1) empowers the court to exercise itspowers of altering or adding charges even after the completion of H15 (2013) 7 SCC 256

evidence, arguments and reserving of the judgment. The alteration oraddition of a charge may be done if in the opinion of the court there wasan omission in the framing of charge or if upon prima facie examinationof the material brought on record, it leads the court to form a presumptiveopinion as to the existence of the factual ingredients constituting thealleged offence. The test to be adopted by the court while deciding uponan addition or alteration of a charge is that the material brought on recordneeds to have a direct link or nexus with the ingredients of the allegedoffence. Addition of a charge merely commences the trial for theadditional charges, whereupon, based on the evidence, it is to bedetermined whether the accused may be convicted for the additionalcharges. The court must exercise its powers under Section 216 judiciouslyand ensure that no prejudice is caused to the accused and that he isallowed to have a fair trial. The only constraint on the court’s power isthe prejudice likely to be caused to the accused by the addition or alterationof charges. Sub-Section (4) accordingly prescribes the approach to beadopted by the courts where prejudice may be caused.

21. The appellant has relied upon a two-judge Bench decision ofthis Court in Onkar Nath Mishra v The State[16]to substantiate thepoint that the ingredients of Sections 406 and 420 of the IPC have notbeen established. This Court while dealing with the nature of evaluationby a court at the stage of framing of charge, held thus:

“11. It is trite that at the stage of framing of charge the courtis required to evaluate the material and documents onrecord with a view to finding out if the facts emergingtherefrom, taken at their face value, disclosed the existenceof all the ingredients constituting the alleged offence. Atthat stage, the court is not expected to go deep into the probativevalue of the material on record. What needs to be consideredis whether there is a ground for presuming that the offencehas been committed and not a ground for convicting theaccused has been made out. At that stage, even strong suspicionfounded on material which leads the court to form a presumptiveopinion as to the existence of the factual ingredients constitutingthe offence alleged would justify the framing of charge againstthe accused in respect of the commission of that offence.”

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1130SUPREME COURT REPORTS

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22. In the present case, the High Court while directing the framingthe additional charges has evaluated the material and evidence broughton record after investigation and held:

“LW1 is the father of the de facto complainant, who states thathis son in law i.e., the first accused promised that he would lookafter his daughter at United Kingdom (UK) and promised to provideDoctor job at UK and claimed Rs.5 lakhs for the said purposeand received the same and he took his daughter to the UK. Hestates that his son-in-law made him believe and received Rs.5lakhs in the presence of elders. He states that he could not mentionabout the cheating done by his son-in-law, when he was examinedearlier. LW13, who is an independent witness, also supports theversion of LW1 and states that Rs.5 lakhs were received by A1with a promise that he would secure doctor job to the complainant’sdaughter. He states that A1 cheated LW1, stating that he wouldprovide job and received Rs.5 lakhs. LW14, also is an independentwitness and he supported the version of LW13. He further statesthat A1 left his wife and child in India and went away afterreceiving Rs.5 lakhs.

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Hence, from the above facts, stated by LWs. 13 and 14, primafacie, the version of LW1 that he gave Rs.5 lakhs to A1 on aEpromise that he would provide a job to his daughter and that A1did not provide any job and cheated him, receives support fromLWs. 13 and 14. When the amount is entrusted to A1, with apromise to provide a job and when he fails to provide thejob and does not return the amount, it can be made out thatA1 did not have any intention to provide job to his wife andFthat he utilised the amount for a purpose other than thepurpose for which he collected the amount from LW1, whichwould suffice to attract the offences under Sections 406 and420 IPC. Whether there is truth in the improved versionof LW.1 and what have been the reasons for his lapse in notGstating the same in his earlier statement, can be adjudicatedat the time of trial.

It is also evidence from the record that the additional charge sheetfiled by the investigating officer, missed the attention of the lowercourt due to which the additional charges could not be framed.”

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23. The test adopted by the High Court is correct and in accordancewith decisions of this Court. In the counter affidavit filed by the fourthrespondent before this Court, depositions of PW 1 (LW 1), PW 5 (LW12) and PW 6 (LW 13) and their cross-examination have been annexed.The material on record supports the possibility that in April 2006, theappellant demanded Rs 5,00,000/- from PW 1, who is the complainant,in order to secure a doctor’s job for the complainant’s daughter in theUnited Kingdom. According to PW 1, he borrowed the amount fromPW 5 (brother-in-law of PW 1) and paid it to the appellant in the presenceof PW 5 and PW 6 (friend of PW 1). Without pronouncing on theprobative value of such evidence, there exists sufficient material on recordthat shows a connection or link with the ingredients of the offencesunder Sections 406 and 420 of the IPC, and the charges sought to beadded.

24. The veracity of the depositions made by the witnesses is aquestion of trial and need not be determined at the time of framing ofcharge. Appreciation of evidence on merit is to be done by the courtonly after the charges have been framed and the trial has commenced.However, for the purpose of framing of charge the court needs to primafacie determine that there exists sufficient material for the commencementof trial. The High Court has relied upon the materials on record andconcluded that the ingredients of the offences under Sections 406 and420 of the IPC are attracted. The High Court has spelt out the reasonsthat have necessitated the addition of the charge and hence, the impugnedorder does not warrant any interference.

25. We accordingly dismiss the appeal. The trial proceedingspending before the Additional Junior Civil Judge, Sattenapalli shallcontinue.

26. Pending application(s), if any, shall stand disposed of.

Kalpana K. Tripathy

Appeal dismissed.

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