When can the court Alter Charges?
Principles to be followed while altering charges.
Which provisions allow?
The court may alter charges under Section 216 of the Criminal Procedure Code, 1973 even after the framing of charges and the trial has begun.
“Add to any charge”
In Nallapareddy Sridhar Reddy v. State of A.P.1, the Hon’ble Supreme Court has observed that the phrase “add to any charge” in Section 216 (1) includes the addition of a new charge at any time before judgment is pronounced.
Prejudice
In Nallapareddy Sridhar Reddy (Supra), the Hon’ble Supreme Court has observed that Section 216(3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defense, or the prosecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge.
New Trail or Adjourn
In Nallapareddy Sridhar Reddy (Supra) case, the Hon’ble Supreme Court has observed that Section 216 (4) contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused.
Exclusive right of the Court
In P. Kartikalakshmi v. Sri Ganesh2, the Hon’ble Supreme Court has observed that 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 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.
Which court can alter?
In CBI v. Karimullah Osan Khan3, the Hon’ble Supreme Court has observed that Section 216 CrPC confers jurisdiction on all courts, including the 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 after that addition or alteration.
New Material found
In Karimullah Osan Khan (Supra) case, the Hon’ble Supreme Court has observed that the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court.”
Defect or Left out
In Anant Prakash Sinha v. State of Haryana4, the Hon’ble Supreme Court observed that the court can change or alter the charge if there is a 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 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.
Alter even when Judgment is Reserved
In CBI v. Karimullah Osan Khan (Supra_ the Hon’ble Supreme Court has observed that Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.
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