The court has the power to alter or add to any charge at any time before judgment is pronounced, as incorporated in S.216(1) of the Code.

While a sessions trial against fourteen accused was in progress and reached almost its fag end, the Sessions Judge altered the charge as he felt that the original charge contained "serious errors". One of the accused rushed to this court and sought for the intervention of this Court under S.482 of the Code of Criminal Procedure (for short the Code') on the ground, inter alia, that such alteration "has caused serious prejudice to the accused." Petitioner prays that Sessions Judge may be directed to proceed with the original charge.

2. Some facts, which are necessary for the disposal of this Crl.M.C, are the following: petitioner and 13 others were committed to the Sessions Court in a case involving murder of one Viswanathan. The Sessions Judge before whom the case came up first framed a charge which is an assortment of 14 counts. The charge related to a series of incidents alleged to have happened around noon on 3-8-1989 which ended up with the murder of one Viswanathan an R. S.S. votary. In the original charge, time of the occurrence was shown as 12.30 p.m. and place of occurrence was shown Keecherikunnu and the common object of the assembly was to attack and cause injuries to some of the prosecution witnesses. In the altered charge the time of the incident was interlude between 12.30 p.m. and 1 p.m. and the common object of the members of the unlawful assembly was to attack and cause death to R.S.S. sympathizers/workers including the deceased Viswanathan. These are the noticeable alterations effected in the charge.

3. According to the learned counsel for the petitioner the original charge did not contain the allegation that the common object of the unlawful assembly was to attack and murder Viswanathan or that the murder took place at 1 O'clock. Such additions in the charge later framed were made without any factual foundation in the records of the case and would only cause prejudice to the accused, contended the counsel.

4. I have gone through copies of the case diary notes of some of the principal witnesses as learned counsel for the petitioner supplied them to me. I am unable to agree that the additions made in the altered charge have no factual foundation in the records. True, the witnesses did not use the words that the common object of the unlawful assembly was to murder Viswanalhan. But the said allegation could very well be the legal profile of the facts contained in the case diary notes.

5. Regarding the second limb of the argument that prejudice would be caused to the accused by altering the-charge in this way particularly when the trial has reached the stage of final arguments, a correct understanding of the court's power to make such alterations is necessary. It is not now necessary to express any opinion as to the need for making such alterations in view of S.215 of the Code which says that no error or omission in stating the particulars shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned failure of justice. Now that the charge stands altered I will only consider whether it is to the prejudice of the accused.

6. The power of the court to alter charge is incorporated in S.216(1) of the Code. "Any Court may alter or add to any charge at any time before judgment is pronounced." S.217 says that whenever a charge is altered or added to by the court after the commencement of the trial, both sides shall be allowed to re-examine any witness "with reference to such alteration or addition" and also to call any further witness whom the court may think to be material. However, if the court considers that such re-examination is only for the purpose of vexation or delay or for defeating the ends of justice, the court has power to decline to recall such witnesses.

7. A reading of Ss.216 and 217 shows that power of the court to alter or add to any charge is uninhibited and untrammelled by any time or stage of the trial. The legislative intention is evidently t