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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Narayana Pisharadi, J.
N.P.Hamza and ors. – Petitioners
Versus
State Of Kerala Represented By The Public Prosecutor And Ors. – Respondents
Crl.MC.No.5428 OF 2020(G)
Decided On : 10-02-2021
Section 216(1) of the Code of Criminal Procedure allows the court to alter or add charges at any time before judgment is pronounced. The power to add or alter charges is wide and can be exercised in the interest of justice. The court must have sufficient materials on record that have a direct link or nexus with the ingredients of the offence. Failure to specify the materials on record when adding a new charge, especially after the examination of the accused, can cause prejudice and render the order liable to be set aside.
Fact of the Case:
The case involves the misappropriation of Rs.2,00,000/- by the first accused while working as the Manager of a cooperative bank, with the assistance of the other accused. The trial court framed charges against the accused under various sections of the Prevention of Corruption Act, 1988 and the Indian Penal Code. The trial court found sufficient material to add an additional charge under Section 202 of the IPC against accused 2 to 5. The petitioners, who are the second and third accused, filed an application to set aside the order adding the charge. The court found that the impugned order did not disclose the materials on record that attracted the offence under Section 202 IPC against the petitioners. The court set aside the order and allowed the petition, giving the trial court the liberty to pass fresh orders for the addition of charges, keeping in mind the observations made in the order.
Finding of the Court:
The court analyzed the provisions of Section 216(1) of the Code of Criminal Procedure, which allows the court to alter or add charges at any time before judgment is pronounced. The court held that the power to alter or add charges is wide and can be exercised in the interest of justice. The court also discussed various precedents that clarified the scope and application of Section 216(1). The court emphasized that the power to add or alter charges must be based on sufficient materials on record that have a direct link or nexus with the ingredients of the offence. The court found that the impugned order did not specify the materials on record that formed the basis for adding the charge under Section 202 IPC against the petitioners, leading to prejudice against them.
Ratio Decidendi: The court held that the power to add or alter charges under Section 216(1) of the Code can be exercised in appropriate cases in the interest of justice. However, the court emphasized that there must be sufficient materials on record that have a direct link or nexus with the ingredients of the offence. The court also clarified that the trial court must specify the materials on record when adding a new charge, especially when it is added at a stage after the examination of the accused. Failure to do so would cause prejudice to the accused and render the order liable to be set aside.
Result: The court allowed the petition and set aside the order adding the charge under Section 202 IPC against the petitioners. The trial court was given the liberty to pass fresh orders for the addition of charges, taking into account the observations made in the order.
ORDER :
The petitioners are the second and the third accused in the case C.C.No.173/2016 pending in the Court of the Enquiry Commissioner and Special Judge, Thalassery.
2. The first accused was employed as the Accountant in the Valapattanam Service Co-operative Bank. Accused 2 to 5 were the Secretary, Manager, Chief Accountant and the Assistant Secretary of the Bank respectively.
3. It is not necessary here to narrate the prosecution case in detail. Suffice it to state that the case relates to misappropriation of an amount of Rs.2,00,000/- allegedly committed by the first accused while he was working as the Manager in-charge of the Bank with the assistance of the other accused in the case.
4. The trial court framed charge against the accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 409, 468, 471, 477A, 201 and 120B of the Indian Penal Code.
5. After examination of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the trial of the case reached the stage of defence evidence. The trial court then found that the materials produced by the prosecution showed sufficient elements to attract the offence punishable under Section 202 I.P.C against accused 2 to 5 and therefore, in the interest of justice, it was necessary to frame additional charge against them for that offence. Accordingly, the trial court passed Annexure-A6 order to that effect.
6. The petitioners, who are the second and the third accused in the case, have filed this application under Section 482 of the Code to set aside Annexure-A6 order.
7. Heard Sri.K.Gopalakrishna Kurup, learned senior counsel who appeared for the petitioners and also the learned Public Prosecutor.
8. Learned senior counsel contended that there is absolutely no material on record before the trial court to add a charge against the petitioners for an offence under Section 202 I.P.C. Learned senior counsel would contend that, in the absence of any such material, the trial court should not have exercised the power under Section 216(1) of the Code. Learned senior counsel further contended that the impugned order does not disclose what are the materials on record which attract the offence punishable under Section 202 I.P.C against the petitioners.
9. Per contra, the learned Public Prosecutor submitted that the trial court was satisfied that there was sufficient material to add a charge for the offence under Section 202 I.P.C against the petitioners and therefore, this Court cannot invoke the power under Section 482 of the Code to interfere with that finding.
10. The relevant portion of Annexure-A6 order reads as follows:
11. It is pertinent here to note that, in the chargesheet filed by the investigating officer, no offence under Section 202 I.P.C is alleged against any of the accused. As far as accused 2 to 5 are concerned, the
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