IMPORTANT POINT
The court emphasized that alteration of charges requires clear evidence supporting the new charge's essential elements, which was lacking in this case.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging Annexure.A7 common order dated 05.09.2023 in Crl.M.P. No.1822 of 2023 and Crl.M.P. No.1821 of 2023 in S.C. No.949 of 2021 on the files of the Special Court for the trial of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Narcotic Drugs and Psychotropic Substances Act [hereinafter referred as ‘NDPS Act’ for short] Cases, Manjeri. The petitioner herein is the sole accused in the above case.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the impugned order and depositions given by DW2 as well as PW1, which led to altering of charge for the offence punishable under Section 3(1)(o) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [hereinafter referred as ‘SC/ST (POA) Act’ for short].

3. Here, initially, FIR was registered alleging that, the accused/petitioner herein, who did not belong to either Scheduled Caste or Scheduled Tribe, threatened and abused the defacto complainant, who did belong to Scheduled Caste community, by calling her caste name in public view. After investigation, Final Report also filed in tune with the allegations in the FIR. Accordingly, trial started against the petitioner/accused for the offences punishable under Section 506(i) of IPC and under Sections 3(1)(s) and 3(2)(va) of the SC/ST (POA) Amendment Act.

4. On completion of the prosecution evidence, the accused was called upon to enter upon his defense. Later, DW1 and DW2 were examined. At the time of examination of DW2, she deposed that the reason for rivalry in between the petitioner/accused and defacto complainant was that the defacto complainant did not vote for the accused in the election. Thereafter, the present petitions were filed by the prosecution to alter the charge and reopen the evidence. As per Annexure.A7 impugned order the learned Special Judge allowed both petitions and thereby incorporated offence under Section 3(1)(o) of the SC/ST (POA) Act and evidence also was re-opened.

5. According to the learned counsel for the petitioner, in order to attract offence under Section 3(1)(o) of the SC/ST (POA) Act, overt acts should be against a member of Scheduled Caste or Scheduled Tribe, for having voted or not having voted for particular candidate or for having voted in a manner provided by law. He also pointed out that, PW1, when she was examined, given candid evidence that she had no vote in the constituency. Therefore, alteration of charge incorporating offence under Section 3(1)(o) of the SC/ST (POA) Act, is an abuse of process of the court and therefore, Annexure.A7 order is illegal and the same would warrant interference.

6. The learned Public Prosecutor also submitted that as per the Police charge there is no allegation as to commission of offence punishable under Section 3(1)(o) of the SC/ST (POA) Act by the accused and Annexure.A7 order was passed merely relying on the evidence given by DW2 alone. Thus, he also failed to justify Annexure.A7 impugned order.

7. Section 216 of Cr.P.C. deals with alteration of charge and the same is as under:

“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 C