Exclusive And Wide-Ranging Powers Provided To The Trial Courts Under Section 216 of Cr. P. C To Add Or Alter Charges At Any Time, Even After Reserving Judgment; Supreme Court

Whether the Charge can be altered under Section 216 of the Cr. P. C. after commencement of trial and recording of evidence of several witnesses?
To consider the issue whether the Court would be well within its jurisdiction to alter the charge at any stage of the proceedings, it is germane to notice source of power for such alteration.
Section 216 of the Code of Criminal Procedure, 1973 reads as follows:
216. Court may alter charge:

1. Any Court may alter or add to any charge at any time before judgment is pronounced
2. Every such alteration or addition shall be read and explained to the accused.
3. If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
4. If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a 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 for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Object
The legislative intention is evidently to invest the Court with all comprehensive power for remedy the defect in a charge whether they arose while framing the charge or due to non-framing of charge; whether the defects were discovered at the inception of trial or at any subsequent stage of it. An erroneous and improper charge may be corrected under Section 216 Cr. P. by re-framing it properly or by adding or altering it for an offence provable by the evidence.

This power to add or alter a charge is comprehensive enough for remedying defects, whether they arise out of the framing of a charge or non-framing of charge and whether they are discovered at the inception of the trial or at subsequent stage of the trial but prior to the pronouncement of the Judgment. Court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the Judgment is pronounced. It is discretionary power but the discretion should be exercised judicially and not arbitrarily.

No Detailed Order Necessary For Altering Charge
It is now settled position that when the Court is framing a charge, there is no necessity to pass a speaking order showing the reason/s for framing of charge. Framing of charge by itself indicates that the Magistrate or the Sessions Judge has applied the mind and considered the relevant aspects and decided that prima facie there is a case to be proceeded with on the materials furnished by the prosecution and, therefore, charge is framed.

If that be so, it cannot be said that when the charge is altered, the alteration of the charge is illegal for the reason that there is no speaking order justifying the reason for the alteration. Sub-section (1) of Section 216 Cr. P. C enables any Court to alter, add to any charge at any time before the Judgment is pronounced.

Section 216 (1) permits any Court to alter or add to any charge at any time before the judgment is pronounced. Other subsections quoted (supra) deal with the manner in which such alteration of charge has to be made.

This power of alteration of the charge, as found in the statute, can be exercised by any Court, before pronouncement of the judgment, which would mean after the matter is reserved for its judgment the charge can be altered. The power of such alteration of charge is also considered by the Supreme Court in the case of ["Anant Prakash Sinha Vs State of Haryana & Anr.", (2016) 6 SCC 105], wherein, the Apex Court held that the charge can be altered at any time during the proceedings, which would mean even after the case is reserved for its Judgment. But, what has to be seen is, whether there is material and what is the prejudice that would be caused to the accused by such act.

The Supreme Court in the said Judgment held as follows:
18. From the aforesaid, it is graphic that 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 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 Cr. P. C.

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 Cr. P. C. 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.

The Supreme Court, in a later Judgment, following Anant Prakash Sinha's case has in ["Dr. Nallapareddy Sridhar Reddy Vs State of Andhara Pradesh & Ors.", (2020) 12 SCC 467] held as follows:
6. Section 216 appears in Chapter XVII Cr. P. C. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused.

The phrase add to any charge in sub-section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done at any time before judgment is pronounced.

Sub-section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, 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. Sub-section (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. Section 217 Cr. P. C deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.

A Two-Judge Bench of Supreme Court in [P. Kartikalakshmi Vs. Sri Ganesh & Anr, (2017) 3 SCC 347: (2017) 2 SCC (Cri) 84], dealt with a case where during the course of a trial for an offence under Section 376 Indian Panel Code, 1860, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 Indian Panel Code, 1860. F.M. Ibrahim Kalifulla, J. while dealing with the power of the Court to alter or add any charge, held: (SCC P. 350, Para 6)

6. … Section 216 Cr. P. C 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 Cr. P.C 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.

In [CBI Vs. Karimullah Osan Khan, (2014) 11 SCC 538: (2014) 3 SCC (Cri) 437], Supreme Court dealt with a case where an application was filed under Section 216 Cr. P. C during the course of trial for addition of charges against the appellant under various provisions of Indian Panel Code, 1860, the Explosives Act, 1884 and the Terrorist & Disruptive Activities (Prevention) Act, 1987. K. S. P. Radhakrishnan, J. speaking for the Court, held thus: (SCC p. 546, Paras 17-18)

17. Section 216 Cr. P. C 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.

18. Section 216 Cr. P. C 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.

Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 Cr. P. C, 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.

In [Jasvinder Saini & Ors. Vs. State (NCT of Delhi), (2013) 7 SCC 256: (2013) 3 SCC (Cri) 295], Supreme Court dealt with the question whether the trial Court was justified in adding a charge under Section 302 Indian Panel Code, 1860 against the accused persons who were charged under Section 304-B Indian Panel Code, 1860. T. S. Thakur, J. (as he then was) speaking for the Court, held thus : (SCC PP. 260-61, Para 11)

11. A plain reading of the above would show that the Court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed 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 commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment.

The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.

From the above line of precedents, it is clear that Section 216 provides the Court an exclusive and wide-ranging power to change or alter any charge. The use of the words at any time before judgment is pronounced in sub-section (1) empowers the Court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the Judgment.

The alteration or addition of a charge may be done if in the opinion of the Court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the Court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence.

Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges.

The Court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the Court's power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Subsection (4) accordingly prescribes the approach to be adopted by the Courts where prejudice may be caused.

Conclusion
Multiple Judicial pronouncements have recognized the necessity of the Courts to alter charges in the interest of Justice. Section 216 of the Code of Criminal Procedure, 1973 statutorily lays down that the accused must not be prejudiced by the alteration of charges made by the Courts. At the time of framing of charges, certain evidence might have been overlooked and the charges framed against the accused could be defective.

The Court is well within its rights to alter such defective charges and make additions to it within Section 216 of the Code of Criminal Procedure, 1973. The purpose behind providing Courts with the right to alter charges is to avoid a miscarriage of Justice that may be caused either by – trying the accused for an offence with a lesser sentence than the one committed by him/her or by trying the accused for an offence with a greater sentence than the one committed by him/her.

An accused must be tried for all offences committed by him/her, some of which might not be made out on a prima facie basis, but are uncovered during the course of the trial when evidence is brought on record. Section 216 of the Code of Criminal Procedure, 1973is a relevant provision that ensures that the victim of a crime is awarded Justice by the Criminal Justice System.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]