VANKAR RAMANBHAI SHIVRAMBHAI vs STATE OF GUJARAT

R/SCR.A/14792/2024 JUDGMENT DATED: 03/11/2026
(GJHC240629882024)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 14792 of 2024
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CRIMINAL APPLICATION NO. 14792 of 2024

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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Approved for Reporting Yes No
✔
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VANKAR RAMANBHAI SHIVRAMBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VIVEK V BHAMARE(6710) for the Applicant(s) No. 1
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Respondent(s) No. 2,3
NOTICE SERVED for the Respondent(s) No. 4,5
MS.DHWANI TRIPATHI APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 03/11/2026

JUDGMENT
1. Heard learned counsel Mr. Vivek Bhamare
appearing for the petitioner, learned counsel Mr.Keval
Brahmbhatt for respondent Nos.2 and 3 and learned APP
Ms.Dhwani Tripathi for the respondent – State.
2. With consent of learned counsels for the respective
parties, the matter is taken up for final disposal.
3. Rule returnable forthwith. Learned APP and
learned advocate Mr.Keval Brahmbhatt waive service of notice
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of rule for and on behalf of respective respondents.
4. The present petition is filed under Articles 226 and
227 of the Constitution of India, wherein the petitioner, being
the original complainant/de facto complainant, has prayed for
the following reliefs:
A. YOUR LORDSHIP may be pleased to admit the
present petition;
B. YOUR LORDSHIP may be issue writ of certiorari or
any other appropriate writ by quashing as setting aside
the order dated 06.07.202 passed by Ld. Sessions Judge
under Exbt: 14 in Cri. Revision Application No. 17 of
2022 whereby Revision Application is rejected as well
as seeks to challenge order Dated 11.04.2022 passed
by Ld. Additional Judicial Magistrate First Class, Patan
under Exbt 6 in criminal case no. 355 of 2021 rejecting
application u/s 216 of C.R.P.C preferred by petitioner
for addition of charge;
C. Pending hearing and final disposal of the present
petitioner YOUR LORDSHIPs be pleased to stay
execution implementation and operation of order dated
06.07.2022 passed by Ld. Sessions Judge under Exbt:
14 in Cri. Revision Application No. 17 of 2022 whereby
Revision Application is rejected as well as seeks to
challenge order Dated 11.04.2022 passed by Ld.
Additional Judicial Magistrate First Class, Patan under
Exbt 6 in criminal case no. 355 of 2021 rejecting
application u/s 216 of C.R.P.C preferred by petitioner
for addition of charge;
D. YOUR LORDSHIP may be issue direction to add the
charge of section 92 of The Rights of Persons with
Disabilities Act, 2016 in criminal case no. 355 of 2021
pending before Additional Judicial Magistrate First
Class, Patan against the respondent no. 2 to 5;
E. Any other and further reliefs, as may be deemed fit
and proper by this Hon'ble Court, may kindly be
granted, in the interest of justice;
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5. Briefly stated, the facts of the case are that the
petitioner, being the original complainant, lodged an FIR
being C.R. No. II-98 of 2019 with Balisana Police Station,
District Patan, for the offences punishable under Sections
504, 294(KH), 506(2) and 114 of the Indian Penal Code.
5.1 Upon completion of the investigation, charge-sheet
came to be filed as on registration of Criminal Case No. 355 of
2021 against the accused and charge for the aforesaid offence
is framed, petitioner rushed to prefer an application at Ex. 6
under Section 216 of the Code of Criminal Procedure, 1973
(for short “CrPC”), seeking addition of the charge for the
offence punishable under Section 92 of the Rights of Persons
with Disabilities Act, 2016 (for short " the Act, 2016").
5.2 The learned Trial Court, by order dated 11th April
2022, rejected the said application. The said order is placed
on record at Annexure B.
5.3 Being aggrieved by the said order, petitioner-
original complainant preferred Criminal Revision Application
No. 17 of 2022 before the learned Sessions Court, Patan.
5.4 The learned Sessions Judge, Patan, after hearing
the learned advocates appearing for the respective parties,
dismissed the revision application by order dated 6th July
2024.
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5.5 Being aggrieved, the petitioner has preferred the
present petition, essentially invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution
of India, seeking the aforesaid reliefs.
6. Learned advocate Mr. Bhamare, referring to the
provisions of Section 216 of the CrPC and Section 92 of the
Act, 2016, submitted that the petitioner is a practicing
advocate and it was well within the knowledge of the
Investigating Officer that the petitioner is suffering from
locomotive disability to the extent of more than 50%, as
evidenced by the disability certificate. Yet, Investigating
Officer ignoring that fact, as also the fact that petitioner was
assaulted with the intention to humiliate for his disability, did
not level the charge under Section 92 of the Act of 2016.
According to the learned advocate appearing for the
petitioner, although the said certificate was placed on record,
the Investigating Officer failed to add the offence punishable
under Section 92 of the Act, 2016 and thereby had committed
manifest error.
6.1 Learned advocate submitted that specific
allegations have been made in the FIR against the accused to
the effect that they threatened the petitioner by stating that,
since he had already lost one leg, they would break his other
leg as well. According to him, the aforesaid allegation itself
indicates that the petitioner, being a person with disability,
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was intentionally insulted and intimidated with the intent to
humiliate him on account of his disability.
6.2 Learned advocate appearing for the petitioner
further referred to the judgment of the Hon’ble Supreme
Court in Dr. Nallapareddy Sridhar Reddy v. State of Andhra
Pradesh and Others , reported in (2020) 12 SCC 467, to
submit that the Court is empowered to alter or add any
charge at any time before the pronouncement of judgment
under Section 216 of the CrPC. He, therefore, submitted that,
having regard to the facts and circumstances of the case, the
provisions of Section 92 of the Act, 2016 and the material
collected during the course of investigation, it was necessary
for the learned Trial Court to alter the charge and add the
charge for the offence punishable under Section 92 of the Act,
of 2016.
6.3 Assailing the impugned orders, learned advocate
Mr.Brahmbhatt appearing for the petitioner submitted that
both the Courts below have committed serious and manifest
errors in rejecting the prayer for alteration of the charge,
without properly appreciating the provisions of Section 92 of
the Act, 2016, as also material evidence collected during
investigation.
6.4 Upon the aforesaid submissions, Mr.Brahmbhatt,
learned advocate urged that the present petition be allowed
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and the charge framed against the accused in Criminal Case
No.355 of 2021 be altered by adding the charge for the
offence punishable under Section 92 of the Act 2016.
7. Per contra , learned advocate learned advocate
appearing for the accused referred to the judgment of the
Supreme Court in Thakur Ram and Others v. State of Bihar ,
reported in AIR 1966 SC 911, to submit that the power under
Section 216 of the CrPC can be exercised by the Court on its
own and that the de facto complainant has no right to seek
any direction or order under the said provision.
7.1 He further submitted that, in the present case, the
petitioner, being a practicing advocate, has taken undue
advantage of his position and has lodged a false complaint
against the accused with an oblique motive to settle personal
scores. He also submitted that the necessary ingredients for
attracting the provisions of Section 92 of the Act, 2016 are
conspicuously absent upon a plain reading of the FIR and the
statements of the petitioner. He, therefore, support the
impugned orders and submit that the learned Courts below
have committed no error in rejecting the application.
Accordingly, he urged that the present petition be dismissed.
8. Learned APP adopted the submissions advanced by
learned advocate Mr. Keval Brambhatt and submitted that the
petitioner, being the de facto complainant, has no right to
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direct or steer the proceedings arising out of the police
complaint or the criminal case instituted pursuant thereto.
The petitioner, in his capacity as a de facto complainant,
cannot maintain an application under Section 216 of the CrPC
seeking addition or alteration of the charge. Therefore,
according to the learned APP, the learned Trial Court has
rightly rejected the application at Exhibit 6, and the said order
has also been rightly affirmed by the learned Sessions Court
in the revision proceedings.
8.1 In view of the aforesaid submissions, learned APP
urged that the present petition be dismissed.
9. Regard being had to the rival submissions
canvassed by learned advocates for the respective parties, at
the outset, it would be apposite to refer to Section 92 of the
Act of 2016, which reads as under:
92. Punishment for offences of atrocities.-
Whoever,-
(a) intentionally insults or intimidates with intent to
humiliate a person with disability in any place within
public view;
(b) assaults or uses force to any person with disability
with intent to dishonour him or outrage the modesty of
a woman with disability;
(c) having the actual charge or control over a person
with disability voluntarily or knowingly denies food or
fluids to him or her;
(d) being in a position to dominate the will of a child or
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woman with disability and uses that position to exploit
her sexually;
(e) voluntarily injures, damages or interferes with the
use of any limb or sense or any supporting device of a
person with disability;
(f) performs, conducts or directs any medical procedure
to be performed on a woman with disability which leads
to or is likely to lead to termination of pregnancy
without her express consent except in cases where
medical procedure for termination of pregnancy is done
in severe cases of disability and with the opinion of a
registered medical practitioner and also with the
consent of the guardian of the woman with disability,
shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend
to five years and with fine.
10. On plain reading of the aforesaid provision, it
emerges that the provision contemplates, inter alia,
intentional insult or intimidation of a person with disability,
with the intent to humiliate such person in any place within
public view, or assault or use of force against a person with
disability with the intent to dishonour such person or outrage
the modesty of a woman with disability. Thus, the essential
ingredients for attracting the provisions of Sections 92(a) and
92(b) of the Act, 2016, as the case may be, must be borne out
from the material available on record. Insofar as Section 92(a)
is concerned, the element of the act having been committed in
a place within public view is of significance. Further, the
requisite intention to humiliate or dishonour a person on
account of his disability is also a material consideration for
invoking the said provision.
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R/SCR.A/14792/2024 JUDGMENT DATED: 03/11/2026
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11. Plain reading of the FIR lodged by the petitioner,
who is himself a practicing advocate, does not disclose the
necessary ingredients so as to attract the provisions of
Section 92 of the Act, 2016. At this juncture, it would be
appropriate to extract the relevant contents of the FIR as
under:
On last 18/11/2019, at around five thirty in the evening,
I had left Patan Court to go to my home at Kani, and
when I reached to Digdi Patiya, I received a phone call
on my mobile number from my nephew Jitu, who stated
that Vaghela Naginbhai Mohanbhai and his family
members are quarreling with me and have come to
assault me; therefore please do something. Therefore, I
immediately came to Balisana Police Station and spoke
to the P.S.I. regarding this matter. Thereupon, the officer
told that ‘you reach and I will come with the police
personnel’. Therefore, after sitting with the P.S.O. for a
short time, I left to go to Kani and reached Kani at half
past six o’clock and at that time, seeing me having come
home, Vaghela Naginbhai Mohanbhai arrived with a
stick in his hand, and his wife Priyankaben and his
sister-in-law Gitaben Hasmukhbhai Vaghela and his
brother Hasmukh Mohanbhai Vaghela also came to my
house, hurled obscene and filthy mother-sister abuses at
me, and stated that we do not want to keep you alive—
you do not have one leg and we want to break your
other leg too and we want to kill you. As they uttered
such abuses, when I told them not to hurl abuses and go
to your house, Naginbhai got provoked and came to hit
me with the stick which was in his hand; hence, my
nephew Rajubhai caught hold of him, and as other
people gathered, they were made to understand and
sent away, and at that time, these people left after
giving threats to kill.
12. The learned Trial Court, as well as the learned
Sessions Court, has considered the aforesaid aspect while
rejecting the petitioner's prayer. Upon examination of the
impugned orders and the material available on record, this
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Court finds no patent illegality or material infirmity
warranting interference in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India.
Moreover, it is a settled position of law that the power under
Section 216 of the CrPC to alter or add any charge is vested
with the Court and may be exercised by the Court on its own.
No party has an enforceable right to seek an order directing
the Court to exercise such power in a particular manner.
13. In case of P. Kartikalakshmi v. Sri Ganesh ,
reported in (2017) 3 SCC 347, the Hon’ble Supreme Court
held as under:
“6. ... Section 216 CrPC empowers the Court to alter or
add any charge at any time before the judgment is
pronounced. It is now well settled that the power
vested in the Court is 12 (2017) 3 SCC 347 exclusive to
the Court and there is no right in any party to seek for
such addition or alteration by filing any application as a
matter of right. It may be that if there was an omission
in the framing of the charge and if it comes to the
knowledge of the Court trying the offence, the power is
always vested in the Court, as provided under Section
216 CrPC to either alter or add the charge and that
such power is available with the Court at any time
before the judgment is pronounced. It is an enabling
provision for the Court to exercise its power under
certain contingencies which comes to its notice or
brought to its notice. In such a situation, if it comes to
the knowledge of the Court that a necessity has arisen
for the charge to be altered or added, it may do so on
its own and no order need to be passed for that
purpose. After such alteration or addition when the
final decision is rendered, it will be open for the parties
to work out their remedies in accordance with law.”
(Emphasis supplied)
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14. In another judgment in case of Anant Prakash
Sinha v. State of Haryana , reported in (2016) 6 SCC 105, the
Hon’ble Supreme Court held as under:
“18. ... the court can change or alter the charge if there
is defect or something is left out. The test is, it must be
founded on the material available on record. It can be
on the basis of the complaint or the FIR or
accompanying documents or the material brought on
record during the course of trial. It can also be done at
any time before pronouncement of judgment. It is not
necessary to advert to each and every circumstance.
Suffice it to say, if the court has not framed a charge
despite the material on record, it has the jurisdiction to
add a charge. Similarly, it has the authority to alter the
charge. The principle that has to be kept in mind is that
the charge so framed by the Magistrate is in accord
with the materials produced before him or if
subsequent evidence 13 (2016) 6 SCC 105 comes on
record. It is not to be understood that unless evidence
has been let in, charges already framed cannot be
altered, for that is not the purport of Section 216 CrPC.
19. In addition to what we have stated hereinabove,
another aspect also has to be kept in mind. It is
obligatory on the part of the court to see that no
prejudice is caused to the accused and he is allowed to
have a fair trial. There are in-built safeguards in
Section 216 CrPC. It is the duty of the trial court to
bear in mind that no prejudice is caused to the accused
as that has the potentiality to affect a fair trial...”
(Emphasis supplied)
15. Thus, there can be no cavil with the proposition
that the power of the Court to alter or add any charge at any
stage before the pronouncement of judgment is wide and
unfettered, subject to the statutory requirements. However,
the existence of such power does not confer upon the de facto
complainant any vested right to compel the Court to exercise
the same in a particular manner or to steer the proceedings
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for addition of a particular charge. Apt to note, learned APP,
who is incharge of the trial before learned Trial Court did not
support plea of petitioner to add charge of Section 92 of the
Act of 2016. In absence thereof complainant cannot insist to
frame charge of particular offence. What further appears that
learned APP either at Revision stage or even in this petition
support the plea of petitioner.
16. In the facts of the present case, the petitioner, who
is a practicing advocate, has failed to demonstrate the
existence of the necessary ingredients for attracting offence
under Section 92 of the Act, 2016. The material on record
does not justify the addition of the proposed charge. The
manner in which the proceedings have been pursued also
indicates an attempt to unnecessary protract the criminal
proceedings and subject the accused to further litigation.
Proceedings at all the stage carried by petitioner being
practicing advocate unquestionably demonstrate that, he by
raising frivolous plea intend to entangle to accused. Fact of
petitioner being practising advocate gives presumption about
awareness of provision of law, he must have knowledge that
the FIR lacks charge of Section 92 of the Act of 2016, on
receiving the copy of FIR but he did not raise any plea at
earlier period during investigation but he came out with
Application at Ex.6, no sooner criminal cases registered. This
approach decipher that he by filling application (Ex.6)
attempted to derail proceeding of criminal case with a view to
harass the accused. In these circumstances, this Court is of
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the view that the present petition deserves to be dismissed
with costs.
17. Appositely, this Court also finds that the present
proceedings are frivolous and appear to have been initiated
with an oblique motive to harass the accused and prolong the
trial. The petitioner, being a practising advocate, has invoked
Section 216 of the CrPC in a manner that has unnecessarily
burdened the judicial process and caused further hardship to
the opposite party. Undoubtedly, the right of access to justice
is a valuable right. However, such a right carries with it a
corresponding obligation to invoke the judicial process bona
fide and for a legitimate adjudicatory purpose. The petitioner,
being a practising advocate, is expected to be aware of the
settled legal position governing the exercise of powers under
Section 216 of the CrPC. The present proceedings, in the facts
and circumstances of the case, are manifestly vexatious and
seek to reopen an issue which has already been considered by
the Courts below.
18. This Court would, therefore, be loath to permit its
judicial process to be employed as an instrument of
oppression or as a device to secure an advantage having no
legitimate nexus with the adjudication of the proceedings.
One cannot remain oblivious to the fact that unmeritorious
proceedings consume valuable judicial time, which is
inherently limited, and thereby have the potential to delay the
adjudication of matters involving genuine disputes.
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19. In the aforesaid circumstances, this is appropriate
case for imposing costs, which is one of the recognised
judicial measures to discourage the misuse of the process of
law.
20. For the foregoing reasons, the present petition
stands dismissed with costs quantified at Rs.5,000/-, to be
deposited by the petitioner-original complainant with the
District Legal Services Authority, Patan. Rule is discharged.
Interim relief, if any, stands vacated. Connected Criminal
Misc. Application, if any, does not survive and stands disposed
of accordingly.
21. The petitioner shall deposit the aforesaid amount of
Rs.5,000/- with the District Legal Services Authority, Patan,
within a period of 15 days from the date of receipt of a copy of
this order. In the event of failure to deposit the amount within
the stipulated period, the same shall be recovered as a fine,
and the concerned District Legal Services Authority shall
issue the necessary certificate for recovery of the amount as
arrears of land revenue.
(J. C. DOSHI,J)
MANOJ
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