- (1.)Heard counsel for the parties. Leave granted. This appeal is directed against the order of the High Court dated 15.2.2013 passed in P. Krithikalakshmi v. Sri Ganesh (2013 SCC OnLine Mad 608 : (2013) 3 MWN (Cri) 521) filed under Sections 397 and 401 of the Cr.P.C. Brief facts, which are required to be stated, are: that the Sessions Judge, Mahila Court, Chennai was dealing with the case in S.C. No.130 of 2011 for an offence under Section 376 I.P.C., as against respondent no.1 herein. In the course of the trial, at the instance of the appellant, an application was filed invoking Section 216 of the Cr.P.C. wherein a prayer was made to add an additional charge for offence under Section 417 I.P.C. along with charge under Section 376 I.P.C. and to treat the additional charge as one of the original charge as provided under Section 216(3) of the Cr.P.C.
(2.)The Trial Court by its order dated 10.12.2012 having declined to countenance the prayer of the appellant, a revision came to be filed under Section 397 Cr.P.C. before the High Court, wherein the impugned order came to be passed. The learned Judge took the view, in so far as the claim of the appellant, for framing an additional charge under Section 216 Cr.P.C. to the effect that it is not for the accused nor for the complainant to apply and seek for such a Signature Not Verified prayer before the Trial Court. The High Court while dealing with the question as to the maintainability of the revision held that the revision was maintainable.
(3.)On the above issues, we heard Mr. Nagendra Rai, learned senior counsel appearing for the appellant, and Mr. A. Ramesh, learned senior counsel for respondent no.1. Mr. Rai, in his submission, contended that in the F.I.R. there was a charge noted under Section 417 I.P.C., that ultimately when the charge came to be framed against respondent no.1, it was confined to Section 376 I.P.C. and, therefore, in the light of the power vested in the Trial Court under Section 216 Cr.P.C., the appellant was well justified in seeking for a prayer for addition of the charge under Section 417 I.P.C. Learned senior counsel for the appellant also contended that when the Trial Court in its order dated 10.12.2012 having rejected the said prayer once and for all, the appellant had no other remedy except to invoke the revisional jurisdiction of the High Court. It is contended that the conclusion of the High Court in having held that revision was maintainable was therefore justified. Learned senior counsel contended that it was at the initiation of the complainant, the case came to be launched by the prosecution, that the complaint disclosed the ingredients of the offences under Sections 417 and 376 I.P.C. and when in the F.I.R., the said offence under Section 417 I.P.C. was also noted, the appellant was well justified in seeking for addition of the said charge, more so, when the required power was available with the Trial Court under Section 216 Cr.P.C. Reliance was placed upon the decision rendered in Pratap v. State of U.P. and Others, reported in (1973) 3 SCC 690 : 1973 SCC (Cri) 496.