IMPORTANT POINT
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.

ORDER :

This Revision petition under Section 397 r/w 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’ hereinafter), has been filed by the accused in SC.No.677/2019 on the files of Assistant Sessions Court, Irinjalakuda.

2. The revision petitioner impugns order in Crl.M.P.No.99/2023 in the above case dated 13.02.2024, whereby the learned Assistant Sessions Judge allowed an application filed by the learned Public Prosecutor under Section 216 of Cr.P.C., to alter the charge for the offence punishable under Section 302 of the Indian Penal Code (for short, ‘IPC’ hereinafter), after altering earlier charge framed, alleging commission of offence punishable under Section 304 of IPC.

3. It is argued by the learned counsel for the petitioner that after framing charge under Sections 304 and 309 of IPC, trial started and PWs 1 to 5 were examined. Thereafter, relying on the evidence given by PW5, the court, acting on the application filed by the prosecution under Section 216 Cr.P.C, altered the charge. It is submitted that the prosecution has no right to seek alteration of charge though it is permissible at the volition of the court. The learned counsel placed decision of this Court reported in [MANU/KE/1404/2024], State of Kerala v. Azeez & Ors., where this Court referred decision of the Apex Court reported in [MANU/SC/1321/2014 : (2017) 3 SCC 347], P. Kartikalakshmi v. Sri Ganesh & Anr. where it was held as under :

“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.”

4. Repelling this contention, the learned Public Prosecutor placed another decision of this Court reported in [2023 KHC OnLine 458 : 2023 KHC 458 : 2023 KER 37477 : 2023 (4) KLT 402], Silvester @ Silver v. State of Kerala wherein also this Court considered the power under Section 216 of Cr.P.C and it was held that going by the statutory provisions and the precedents, a proceeding initiated at the instance of the Public Prosecutor or the defacto complainant for alteration of charge is not vitiated since the informant or the Public Prosecutor, by way of an application, could bring to the notice of the court the defects in the charge and court exercises its powers under Section 216 of Cr.P.C based on the material available. The test to be adopted is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. The vital test is the prejudice likely to be caused to the accused. While the Court exercises the powers under Section 216 of Cr.P.C, it shall ensure that no prejudice is caused to the accused and that he gets a fair trial. In Silvester @ Silver v. State of Kerala's (supra), the learned Single Judge of this Court relied on P. Kartikalakshmi v. Sri Ganesh & Anr.'s case (supra) and also [2020 (12) SCC 467], Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh and [2023 SCC OnLine SC 424], Soundarajan v. State Rep. By the Inspector of Police Vigilance Anti-corruption Dindigul. That apart the decision reported in [2016 (6) SCC 105