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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Silvester @ Silver, S/o. Xaviour & Ors. - Petitioners
Versus
State of Kerala, Represented by Public Prosecutor - Respondent
Crl. MC No. 3606 of 2023
Decided On : 05-07-2023
Indian Penal Code, 1860 - Sections 34, 307, 417, 452, 324, 323, 308 and 354 - Criminal Procedure Code, 1973 - Section 313, 216 - Alteration of charge - Jurisdiction - Public Prosecutor filed a petition under Section 216 Cr.P.C. for altering charge by adding Section 307 instead of Section 308 IPC - While Court exercises powers under Section 216 Cr.P.C., it shall ensure that no prejudice is caused to accused and that he gets a fair trial. (Para 23)
Finding of the Court :
Informant or Public Prosecutor, by way of an application, may bring to notice of Court defects in charge and Court exercises power under Section 216 Cr.P.C. based on material available - Test to be adopted is that material brought on record needs to have a direct link or nexus with ingredients of alleged offence - Vital test is prejudice likely to be caused to accused - While Court exercises powers under Section 216 Cr.P.C., it shall ensure that no prejudice is caused to accused and that he gets a fair trial - Petitioners have no case that any prejudice has been caused to them while directing alteration of charge - Order impugned requires no interference.
Result : Criminal M.C dismissed
The legal document discusses the scope and authority of a court to alter or add charges under Section 216 of the Criminal Procedure Code (Cr.P.C.) prior to the pronouncement of judgment. The key points are as follows:
The court has broad and comprehensive powers to alter or add charges at any time before judgment is pronounced, based on the material available during the trial (!) (!) .
Such alterations or additions must be read out and explained to the accused to ensure transparency and fairness (!) (!) .
The primary consideration when exercising this power is whether the alteration or addition causes prejudice to the accused or the prosecution. If no prejudice is likely, the trial may proceed as if the original or altered charge was the initial charge (!) (!) .
If prejudice is likely, the court may either adjourn the trial or direct a new trial to safeguard the rights of the accused (!) (!) .
The power to alter charges can be exercised on the court’s own initiative or upon application by the prosecution or the complainant, provided it is based on relevant material and does not violate the rights of the accused (!) (!) (!) .
The exercise of this power is an enabling provision, and no party has a vested right to seek alterations; it is at the court’s discretion based on the circumstances and material brought before it (!) (!) .
The court must ensure that any alteration or addition does not compromise the fairness of the trial or prejudice the accused’s right to a fair defense (!) (!) .
In the specific case discussed, the court found that no prejudice was caused to the petitioners by the alteration of charges, and therefore, the proceedings and the order for charge alteration were upheld and not vitiated (!) (!) .
In summary, the document emphasizes that the court’s authority to modify charges under Section 216 Cr.P.C. is wide-ranging and intended to facilitate a fair and just trial, provided that the rights of the accused are protected and no prejudice results from such modifications.
ORDER :
The challenge in this Crl.M.C is to the order dated 15.02.2023 in Crl.M.P No.674/2022 in S.C No.492/2017 on the file of the Principal Assistant Sessions Court, North Paravur.
2. Heard both sides.
3. The petitioners are the accused in the Sessions Case. Charges were initially framed against them alleging offences under Sections 452, 324, 323, 308 and 354 read with Section 34 of IPC.
4. The prosecution examined PWs 1 to 14 and proved Exts.P1 to P13 and MO1.
5. The accused were examined under Section 313 Cr.P.C. Then the Public Prosecutor filed a petition under Section 216 Cr.P.C for altering the charge by adding Section 307 instead of Section 308 IPC. The Court below, after considering the entire materials, altered the charge by deleting Section 308 and framing the charge under Section 307 IPC.
6. The learned counsel for the petitioners contended that the entire proceedings initiated for alteration of charge are vitiated as the application was filed by the Public Prosecutor. The learned counsel relied on Kartikalakshmi P. v. Sri. Ganesh and another ((2017) 3 SCC 347) and Vijay Kumar Jain v. State of Madhya Pradesh (2020 KHC 4053) = (MANU/MP/0594/2020) to substantiate his contentions.
7. The learned Public Prosecutor relying on Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh [(2020) 12 SCC 467] and Soundarajan v. State rep. by the Inspector of Police Vigilance Anticorruption Dindigul (2023 SCC Online SC 424) contended that the proceedings initiated for alteration of charges are in no way vitiated as the Public Prosecutor has a duty to bring to the notice of the Court that proper charge is not framed.
The Question
8. Would a proceeding initiated at the instance of the Public Prosecutor for alteration of the charge under Section 216 Cr.P.C be treated as vitiated due to want of jurisdiction?
9. For convenience of analysis, Section 216 Cr.P.C is extracted below :
(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.”
10. Section 216 Cr.P.C authorises the Court to alter or add any charge at any time before the judgment is pronounced. The provision enables the alteration or addition of a charge based on the materials brought on record during the course of trial. Subsection (1) of Section 216 Cr.P.C provides that the addition or alteration has to be done at any time before the judgment is pronounced. As per sub-section (2) of Section 216 Cr.P.C whenever such an alteration or addition is made, it is to be read out and explained to the accused. Sub-section (3) of Section 216 Cr.P.C 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) of Section 216 Cr.P.C contemplates a situation where
Point of Law : Section 216 Cr.P.C. is extracted court may alter charge.
The power to alter or add any charge 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.
The court affirmed that while a Prosecutor can alert the court to charge deficiencies, only the court can alter charges, ensuring no prejudice to the accused.
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 court clarified that the power to alter or add charges under Section 216 Cr.P.C. is solely within the discretion of the court, ensuring that the rights of the accused are protected and the trial ....
The power to alter the charge under Section 216 Cr.P.C. is exclusive to the Court and can be exercised at any time before the judgment is pronounced. The alteration must be founded on material availa....
The High Court's revisional jurisdiction limits intervention in Trial Court decisions unless there is a clear error or injustice, especially regarding the framing of charges under the Criminal Proced....
Alteration of charge – Jurisdiction of Section 216 Cr.P.C. cannot be exercised on application made by any of parties but on its own satisfaction.
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