IMPORTANT POINT
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.

ORDER :

C. Jayachandran, J.

This Criminal Miscellaneous Case is preferred by accused nos. 2 and 3 in C.C. No.270 of 2016 on the files of the Special Court, Muvattupuzha. The petitioners are aggrieved by Annexure-V order which allowed C.M.P. No.882 of 2018 preferred by the Public Prosecutor seeking alteration of charge under Section 216, Cr.P.C.

2. Heard the learned counsel for the petitioners and the learned Special Public Prosecutor (Vigilance). Perused the records.

3. Learned counsel for the petitioners would first submit that no sanction under Section 197, Cr.P.C. has been obtained to alter the charge with respect to the offence under Sections 468 and 420 of the Penal Code. This submission was met by the learned Special Public Prosecutor (Vigilance) by pointing out that the petitioners are not persons removable from their office, except with the sanction of the Government. Petitioners 1 and 2 (accused nos.2 and 3) were Forest Range Officers, whose appointing authority is the Principal Chief Conservator of Forest, wherefore, the sanction of the Government is not required for their removal from office. Learned Public Prosecutor would also point out that, in Annexure-R(a) sanction order, sanction in respect of offence under Section 420 has already been granted. Insofar as offence under Section 468, the sanctioning authority has taken stock of the act of petitioners in committing forgery with respect to convener bill No.108/03-04 and all what was missed is to mention the Section under which the offence of forgery is constituted, that is to say, Section 468. It is this omission, which is sought to be rectified by alteration of charge, insofar as offence under Section 468 is concerned. Once the sanctioning authority has taken note of the factum of commission of the offence of forgery, as disclosed from the records of the investigation, non mentioning of the Section which constitute the offence cannot be fatal, is the submission made.

4. This Court is in complete agreement with the submission made by the learned Public Prosecutor in this regard. Therefore, the contention that the alteration of charge requires a fresh sanction under Section 197, Cr.P.C. will stand repelled.

5. Secondly, learned counsel would argue that the Prosecutor has no power as per the scheme of Section 216 Cr.P.C. to file an application seeking alteration of charge. The power is within the exclusive domain of the Court, which is expected to be exercised suo motu; and not on the application of a Public Prosecutor. Learned counsel would rely on the judgments of the Hon'ble Supreme Court in Kartikalakshmi P. v. Sri.Ganesh and Another [2017 (3) SCC 347]. Learned counsel would also canvass for the position that the law laid down to the contrary to Anant Prakash Sinha v. State of Haryana [2016 (6) SCC 105] is a judgment per incuriam, as held by a Division Bench of the Madhya Pradesh High Court in Vijaya Kumar Jain v. State of Madhya Pradesh [2020 KHC 4053]. On facts, learned counsel would submit that the alteration of charge as evidenced by Annexure-V has caused serious prejudice to the accused. Learned counsel would particularly emphasize on the alteration of charge, in the context of the offence under Section 420 of the Penal Code to the effect that the Government was cheated, instead of CW1 as canvassed in the original charge. With respect to the alteration incorporating offence under Section 468, the submission is that a new offence is sought to be incorporated, after adducing the entire prosecution evidence, after completion of the examination under Section 313 Cr.P.C. and also after examining as many as five witnesses on the defence side. Such an exercise will certainly prejudice the accused, is the sum and substance of the argument raised.

6. Opposing the above submission, learned Prosecutor would submit that the Public Prosecutor is entitled to bring the facts to the notice of the Court, so as to exercise the power under Section 216 Cr.P.C. It has been so hel