Alteration And Addition Of Charge
Unless the accused convinces the magistrate that there has been a travesty of
justice by not framing the charge under a specific provision, and some prejudice
has been caused to the accused, an accused can be punished for an offence that
is less severe or minor than the one for which he has been charged.
The Court must evaluate the fact, i.e., whether an objection could have been submitted at an earlier time of the proceedings or not, in evaluating whether any error, omission, or irregularity in formulating the charges has resulted in a failure of justice. When deciding on a specific issue, such as prejudice, the magistrate must keep in mind that every accused person has a fundamental right to a fair and proper trial. In this research paper we will evaluating the power of courts to alter and add charges and the legal position of the provisions pertaining to this subject under the code of criminal procedure.
Procedure of Trail
In criminal proceedings, the most important need for a fair trial is an accurate description of the charges. We can find out what a charge should contain by looking at Sections 211 to 214 of the CrPC; Section 218 of the CrPC says that each different offence should have its own charge; and finally, Section 219 of the CrPC says that each charge should be strained distinctly, so that the first two rules are not nullified by a plethora of unrelated charges.
The term "framing of charge" refers to a written sketch by a judge or magistrate in a specific prescribed form of charge sheet addressing a specific accusation that appears prima facie, in the evidence gathered during the inquiry, against the defendant,stating the details of the crime for which he is charged there.
The charge sheet contains the substance of the specific complaint as to the date, time, and place of the alleged crime, the person or things against whom the crime is allegedly committed, the circumstances of the crime, the law and sections allegedly violated, and is read over and explained to the accused in order to make him aware of the full particulars of the allegation against him so that he can properly defend himself. The Judge or Magistrate is unsure whether to formulate the charge based solely on the police charge sheet.
Amendment/Alteration of charge
Any charge can be changed or added to by the Court at any moment before judgement is rendered. Every such change or addition must be read to the accused and explained. If the modification or addition to a charge is such that proceeding with the trial immediately would not, in the Court's opinion, prejudice the accused in the defence or the prosecutor during the course of the case, the Court may, in its discretion, proceed with the trial as if the improved or added charge had been the original charge after the modification or addition has been made.
The case may not be prosecuted if the offence indicated in the revised or added charge is one for which prior penalty is required. Unless prior consent has been acquired for a prosecution based on the same evidences as those used to establish the revised or added charge, with until such permission is secured.
When a charge is altered or added to by the Court after the start of a trial, the prosecutor and the accused are both allowed to:
(a) Re-summon and examine any witness who may have been examined with reference to such alteration or addition, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of the trial.
When a charge containing more than one head is framed against the same person, and one or more of them is convicted, the complainant, or the officer leading the prosecution, may, with the Court's consent, remove the lasting charge or charges, or the Court may, on its own accord, stay the review into, or trial of, such charge or charges, and such removal shall have the effect of a discharge on such charge.
When the accused is convicted of one of multiple offences before the other charges are tried, this section is suitable. The charges must be for separate offences, and the provision will not apply if the charges are brought under Sections 220(3), 220(4), or 221.
Legal Position
Under the code of criminal procedure, how does the court modify the charge? If the court finds that there is sufficient evidence on record to prove the occurrence of any offence not charged by the court, the charge may be changed during the trial.
Under section 216 of the Code of Criminal Procedure, the court has the authority to change or add to the charge at any moment until the verdict is rendered.
The term "at any time before judgement is announced" suggests that the authority is broad. This power should only be exercised in suitable circumstances, and the court should ensure that its order does not harm the accused. The ultimate purpose of this power should be to serve the interests of justice. Sections 228 and 240 of the Code, respectively, deal with the formulation of the charge during a trial before a Court of Sessions and the trial of Warrant -cases by Magistrates. Whenever such a change or addition is made, it must be read out and the accused must be told.
The legal position is well established that the Trial Court is not required to examine and assess the materials placed on record by the prosecution in detail at the stage of charge framing, nor is it required to consider the sufficiency of the materials to establish the offence alleged against the accused persons. The Court is only required to review the documents at the charge stage in order to be satisfied that a prima facie case of commission of the claimed offence has been made out against the accused individual.
Tulsabai v. the State of M.P.: [1]The Court does not need to conduct an extensive investigation when formulating the charge. Even if prima facie materials are discovered, the framing charge order cannot interfere.
In Thakur Shah v. Emperor [2]: The Privy Council spoke on alteration or addition of charges as follows:
"The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."
In Jasvinder Saini and others v. State (Government of NCT of Delhi) [3];
The Supreme court of India examined the scope of Section 216 CrPC and held as follows:
"Once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after the commencement of the trial."
However, Section 216 does not specify the conditions in which such an addition or change may be made. Nonetheless, it is trite that the question of any such addition or alteration would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is deemed necessary after the trial has begun in light of the evidence that may be presented to the court.
In Hasanbhai Valibhai Qureshi v. State of Gujarat[4]:
The supreme court ruled that whenever an application for a charge change or addition is made under section 216 of the code, the court should decide on the basis of the case's broad probabilities, based on the total effect of the evidence and documents produced, and that any charge change or addition is necessary.
He has done nothing other than bring to the attention of the court the factual situation of the information obtained by police during the investigation into the petitioners, as provided by Section 216 of the Code. The court has the authority to evaluate the evidence and issue an order adding or altering the accusation, provided that sufficient time is allowed to either the accused or the prosecution to prove the charge against them.
Under the Code of Criminal Procedure, the Sessions Judge had no authority to dismiss any charges for which the accused had been committed for trial. In circumstances where a person is committed for trial without a charge or with a defective or erroneous charge, he can draught a charge, add to or otherwise amend the charge in the exercise of his authority under s. 226 of the Code.
Quashing of charge State of Maharashtra v. Ishwar Piraji Kalpatri and others [5]:
If a prima facie case is established on the basis of allegations, the High Court has no power to quash the proceedings at this level.
It is also well established that when the accused files a petition under Section 482 Cr.P.C. seeking the quashing of a charge framed against them, the Court should not interfere with the order unless there are compelling reasons to believe that the charge framed against the accused should be quashed in the interest of justice and to avoid abuse of the Court's process.
Only in severe circumstances and on rare instances can such an order be issued. It is important to remember that once the Trial Court has established a charge against an accused person, the trial must proceed without undue interference from a higher court, and the prosecution's whole evidence should be placed on the record.
The State Of Delhi vs Gyan Devi And Ors;[6]:
If the prosecutor's proposed evidence to prove the accused's guilt, even if fully accepted before being challenged by cross-examination or rebutted by defence evidence if any, cannot show that the accused committed the particular offence, the charge can be quashed.
Amit Kapoor vs Ramesh Chander & Anr[7]:
The Court may be justified in quashing the charge if the charges made and as they appeared from the record and documents affixed thereto to largely give rise to and constitute no'element of criminality' and do not fulfil the essential ingredients of a criminal crime.
State vs 1. Veena Jain W/O Subhash Jain[8]
The Delhi High Court has ruled that lower courts have "comprehensive" power to change or add charges in a criminal case at any point of the proceedings before a judgement is issued. "The court has adequate discretion to amend or alter a charge only if it gives the accused complete opportunity to put out his defence," stated a bench of justices Kailash Gambhir and Indermeet Kaur.
"This section (216) invests complete jurisdiction in the court to repair flaws in the framing or non-framing of a charge, whether detected at the opening stage of the trial or at any subsequent step prior to judgement," it stated, referring to a provision of the Code of Criminal Procedure.
"If any omission in the charge made at the start of the trial is discovered at any point before the judgement is given, that omission can be repaired under this section and an appropriate charge may be framed," the bench stated. The remarks were made in a decision on a pair of appeals filed against convictions in a case under sections 304B (dowry death) and 498A (cruelty to a woman) of the Indian Penal Code.
Yash Jain, his parents Veena and Subhash Jain, and his brother-in-law Prashant Jain were accused of murdering his 28-year-old wife Shalu for dowry on January 23, 1998, just two-and-a-half years after their marriage. The lower court had sentenced Yash to life in prison and the other defendants to various prison terms.
Conclusion
In order to conclude we can say that Sec. 216 of the CrPC gives all Courts, including specific Courts, the authority to change or add any charge framed before at any moment before the judgement is rendered. When some materials are brought before the court that have a legitimate nexus with the charges that are sought to be added or modified, the courts are entrusted by statute to exercise the power of addition of charge or modification of charge.
Merely because the charges are changed after the trial has concluded will no longer lead to the conclusion that it has resulted in prejudice to the accused person and is contrary to natural justice, because sufficient safeguards have been incorporated in Sec. 216 CrPC, which has since been brushed up through judgment or order of the Supreme Court.
Bibliography:
The Court must evaluate the fact, i.e., whether an objection could have been submitted at an earlier time of the proceedings or not, in evaluating whether any error, omission, or irregularity in formulating the charges has resulted in a failure of justice. When deciding on a specific issue, such as prejudice, the magistrate must keep in mind that every accused person has a fundamental right to a fair and proper trial. In this research paper we will evaluating the power of courts to alter and add charges and the legal position of the provisions pertaining to this subject under the code of criminal procedure.
Framing of Charge: Provision, Procedure and Alteration of Charges
In criminal law, one of the most important aspects of a fair trial is providing full information to the accused about the charges levelled against him. The purpose of mounting a charge is to provide the accused clear, distinct, and precise notice of the nature of the accusation he or she will face during the course of a trial. The goal of the charge is to provide a warning notice to the accused, and the accused is summoned to appear in court in a clear, distinct, or precise manner.Legal Provisions offered by CrPC
Section 213 discusses when the method of committing the crime must be revealed. Section 214 refers to a rule for interpreting the charge's words, which states that words used to describe an offence in a charge shall be interpreted in the manner assigned to them by the legislation under which the offence is penalised.Procedure of Trail
In criminal proceedings, the most important need for a fair trial is an accurate description of the charges. We can find out what a charge should contain by looking at Sections 211 to 214 of the CrPC; Section 218 of the CrPC says that each different offence should have its own charge; and finally, Section 219 of the CrPC says that each charge should be strained distinctly, so that the first two rules are not nullified by a plethora of unrelated charges.
The term "framing of charge" refers to a written sketch by a judge or magistrate in a specific prescribed form of charge sheet addressing a specific accusation that appears prima facie, in the evidence gathered during the inquiry, against the defendant,stating the details of the crime for which he is charged there.
The charge sheet contains the substance of the specific complaint as to the date, time, and place of the alleged crime, the person or things against whom the crime is allegedly committed, the circumstances of the crime, the law and sections allegedly violated, and is read over and explained to the accused in order to make him aware of the full particulars of the allegation against him so that he can properly defend himself. The Judge or Magistrate is unsure whether to formulate the charge based solely on the police charge sheet.
Amendment/Alteration of charge
Any charge can be changed or added to by the Court at any moment before judgement is rendered. Every such change or addition must be read to the accused and explained. If the modification or addition to a charge is such that proceeding with the trial immediately would not, in the Court's opinion, prejudice the accused in the defence or the prosecutor during the course of the case, the Court may, in its discretion, proceed with the trial as if the improved or added charge had been the original charge after the modification or addition has been made.
The case may not be prosecuted if the offence indicated in the revised or added charge is one for which prior penalty is required. Unless prior consent has been acquired for a prosecution based on the same evidences as those used to establish the revised or added charge, with until such permission is secured.
When a charge is altered or added to by the Court after the start of a trial, the prosecutor and the accused are both allowed to:
(a) Re-summon and examine any witness who may have been examined with reference to such alteration or addition, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of the trial.
- To summon any further witnesses the Court deems relevant.
- If a charge is changed, the accused has the right to recall any witness who the prosecution or the accused wishes to recall, and the Court is required to do so.
When a charge containing more than one head is framed against the same person, and one or more of them is convicted, the complainant, or the officer leading the prosecution, may, with the Court's consent, remove the lasting charge or charges, or the Court may, on its own accord, stay the review into, or trial of, such charge or charges, and such removal shall have the effect of a discharge on such charge.
When the accused is convicted of one of multiple offences before the other charges are tried, this section is suitable. The charges must be for separate offences, and the provision will not apply if the charges are brought under Sections 220(3), 220(4), or 221.
Legal Position
Under the code of criminal procedure, how does the court modify the charge? If the court finds that there is sufficient evidence on record to prove the occurrence of any offence not charged by the court, the charge may be changed during the trial.
Under section 216 of the Code of Criminal Procedure, the court has the authority to change or add to the charge at any moment until the verdict is rendered.
The term "at any time before judgement is announced" suggests that the authority is broad. This power should only be exercised in suitable circumstances, and the court should ensure that its order does not harm the accused. The ultimate purpose of this power should be to serve the interests of justice. Sections 228 and 240 of the Code, respectively, deal with the formulation of the charge during a trial before a Court of Sessions and the trial of Warrant -cases by Magistrates. Whenever such a change or addition is made, it must be read out and the accused must be told.
The legal position is well established that the Trial Court is not required to examine and assess the materials placed on record by the prosecution in detail at the stage of charge framing, nor is it required to consider the sufficiency of the materials to establish the offence alleged against the accused persons. The Court is only required to review the documents at the charge stage in order to be satisfied that a prima facie case of commission of the claimed offence has been made out against the accused individual.
Tulsabai v. the State of M.P.: [1]The Court does not need to conduct an extensive investigation when formulating the charge. Even if prima facie materials are discovered, the framing charge order cannot interfere.
In Thakur Shah v. Emperor [2]: The Privy Council spoke on alteration or addition of charges as follows:
"The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."
In Jasvinder Saini and others v. State (Government of NCT of Delhi) [3];
The Supreme court of India examined the scope of Section 216 CrPC and held as follows:
"Once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after the commencement of the trial."
However, Section 216 does not specify the conditions in which such an addition or change may be made. Nonetheless, it is trite that the question of any such addition or alteration would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is deemed necessary after the trial has begun in light of the evidence that may be presented to the court.
In Hasanbhai Valibhai Qureshi v. State of Gujarat[4]:
The supreme court ruled that whenever an application for a charge change or addition is made under section 216 of the code, the court should decide on the basis of the case's broad probabilities, based on the total effect of the evidence and documents produced, and that any charge change or addition is necessary.
He has done nothing other than bring to the attention of the court the factual situation of the information obtained by police during the investigation into the petitioners, as provided by Section 216 of the Code. The court has the authority to evaluate the evidence and issue an order adding or altering the accusation, provided that sufficient time is allowed to either the accused or the prosecution to prove the charge against them.
Under the Code of Criminal Procedure, the Sessions Judge had no authority to dismiss any charges for which the accused had been committed for trial. In circumstances where a person is committed for trial without a charge or with a defective or erroneous charge, he can draught a charge, add to or otherwise amend the charge in the exercise of his authority under s. 226 of the Code.
Quashing of charge State of Maharashtra v. Ishwar Piraji Kalpatri and others [5]:
If a prima facie case is established on the basis of allegations, the High Court has no power to quash the proceedings at this level.
It is also well established that when the accused files a petition under Section 482 Cr.P.C. seeking the quashing of a charge framed against them, the Court should not interfere with the order unless there are compelling reasons to believe that the charge framed against the accused should be quashed in the interest of justice and to avoid abuse of the Court's process.
Only in severe circumstances and on rare instances can such an order be issued. It is important to remember that once the Trial Court has established a charge against an accused person, the trial must proceed without undue interference from a higher court, and the prosecution's whole evidence should be placed on the record.
The State Of Delhi vs Gyan Devi And Ors;[6]:
If the prosecutor's proposed evidence to prove the accused's guilt, even if fully accepted before being challenged by cross-examination or rebutted by defence evidence if any, cannot show that the accused committed the particular offence, the charge can be quashed.
Amit Kapoor vs Ramesh Chander & Anr[7]:
The Court may be justified in quashing the charge if the charges made and as they appeared from the record and documents affixed thereto to largely give rise to and constitute no'element of criminality' and do not fulfil the essential ingredients of a criminal crime.
State vs 1. Veena Jain W/O Subhash Jain[8]
The Delhi High Court has ruled that lower courts have "comprehensive" power to change or add charges in a criminal case at any point of the proceedings before a judgement is issued. "The court has adequate discretion to amend or alter a charge only if it gives the accused complete opportunity to put out his defence," stated a bench of justices Kailash Gambhir and Indermeet Kaur.
"This section (216) invests complete jurisdiction in the court to repair flaws in the framing or non-framing of a charge, whether detected at the opening stage of the trial or at any subsequent step prior to judgement," it stated, referring to a provision of the Code of Criminal Procedure.
"If any omission in the charge made at the start of the trial is discovered at any point before the judgement is given, that omission can be repaired under this section and an appropriate charge may be framed," the bench stated. The remarks were made in a decision on a pair of appeals filed against convictions in a case under sections 304B (dowry death) and 498A (cruelty to a woman) of the Indian Penal Code.
Yash Jain, his parents Veena and Subhash Jain, and his brother-in-law Prashant Jain were accused of murdering his 28-year-old wife Shalu for dowry on January 23, 1998, just two-and-a-half years after their marriage. The lower court had sentenced Yash to life in prison and the other defendants to various prison terms.
Conclusion
In order to conclude we can say that Sec. 216 of the CrPC gives all Courts, including specific Courts, the authority to change or add any charge framed before at any moment before the judgement is rendered. When some materials are brought before the court that have a legitimate nexus with the charges that are sought to be added or modified, the courts are entrusted by statute to exercise the power of addition of charge or modification of charge.
Merely because the charges are changed after the trial has concluded will no longer lead to the conclusion that it has resulted in prejudice to the accused person and is contrary to natural justice, because sufficient safeguards have been incorporated in Sec. 216 CrPC, which has since been brushed up through judgment or order of the Supreme Court.
Bibliography:
- The Code of Criminal Procedure
- https://indiankanoon.org/
- https://articles.manupatra.com/
- 1993 Cri LJ 368(M.P.)
- AIR 1943 PC 192
- (2013) 7 SCC 256
- AIR 2004 SC 2078
- 1996 Cri LJ 1127 SC
- AIR 2000 SC
- AIR 2012 SC
- State vs 1. Veena Jain W/O Subhash Jain
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