IMPORTANT POINT
The main legal point established in the judgment is that the power to alter or add charges under Section 216 of the Cr.P.C. lies exclusively with the court and cannot be exercised at the instance of the accused or the complainant.

ORDER :

This criminal revision petition under Section 397 (1) read with Section 401 of the Criminal Procedure Code, (for short, ‘the Cr.P.C’) is filed by the accused No.1 with a prayer to set aside the order dated 11.07.2022 passed by the Court of I Additional District and Session Judge, Belagavi, in Spl.Case.No.77/2014, wherein the application filed by the prosecution under Section 216 of the Cr.P.C. was allowed.

2. Heard the learned counsel for the parties.

3. Petitioner herein was charge sheeted along with accused No.2 for the offences punishable under Sections 304A and 201 read with Section 34 of the Indian Penal Code (for short, ‘the IPC’) and Section 135(1)A Karnataka Electricity Act (for short,’ the K.E.Act’). The trial Court after taking cognizance of the charge sheeted offences had issued summons to the accused. Since accused claimed to be tried, the case was posted for recording the evidence on behalf of the prosecution. At the fag end of the trial, prosecution had filed an application under Section 216 of the Cr.P.C with a prayer to alter the charge for the offence punishable under Section 304 Part II instead of offence punishable under Section 304A. The said application was opposed by the accused. The trial Court vide impugned order had allowed the said application. Being aggrieved by the same, accused No.1 is before this Court.

4. Learned counsel for the petitioner submits that from a reading of Section 216 of Cr.P.C., it is very clear that it is only the trial Court that can exercise power under the said provision. He submits that unless sufficient material is available on record during the course of trial, the power under Section 216 cannot be exercised. He accordingly prays to allow the petition.

5. Per contra, learned High Court Government Pleader has opposed the petition. She submits that the plain reading of the Section 216 of the Cr.P.C would go to show that at any stage the trial Court can alter or add any charge if it finds that there is sufficient material for exercising powers under Section 216 Cr.P.C. She also submits that the accused are not prejudiced since they have a right to recall the witnesses. Accordingly, she prays to dismiss the petition.

6. Undisputed facts in the present case are, charge sheet was filed against the accused for the offences punishable under Section 304A and 201 read with Section 34 of the IPC and Section 135(1)(A) K.E.Act and charges were framed against the accused by the trial Court only for the aforesaid offences. After the charges were framed the trial Court had proceeded with the trial of the case and at the stage of recording the evidence of P.W.20, prosecution had filed an application under Section 216 Cr.P.C with a prayer to alter the charges.

7. Sections 216 and 217 of Cr.P.C. reads as under:

“Section 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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded