The necessity of material available on record to warrant the alteration of charges under Section 216 of the Code of Criminal Procedure.

1. The petitioner herein is an accused in S.C. No. 91 of 2008, on. the file of the District and Sessions Court, Sivagangai. Charges were framed against the petitioner for the alleged offences punishable under Sections 306, 498(A) and 304(B) IPC, thereby the Trial Court, in view of a circular dated 18.5.2011, issued by the Registry of this Court, in pursuant to a judgment passed by the Hon’ble Supreme Court in Rajbir @ Raju and Another v. State of Haryana AIR 2011 SC 568 : LNIND 2010 SC 1123 : (2011) 1 MLJ (Crl) 725 , has altered the charges by including the alleged offence punishable under Section 302 IPC. Challenging the said order, the present Criminal Original Petition has been filed.

2. The learned counsel for the petitioner submitted that a perusal of a copy of the complaint and charge sheet, which have been taken on record, would amply disclose the fact that the alleged offence punishable under Section 302 IPC has not been made out. The learned counsel further submitted that while exercising power under Section 216 of the Code of Criminal Procedure towards addition or alteration of the charges during trial, the Court will have to be satisfied with the materials available on record. The learned counsel also submitted that the said judgment of the Hon’ble Apex Court cannot be applied like a statute and has to be applied on the facts of the case, and hence, the order passed by the learned District and Sessions Judge, Sivagangai, in adding alleged offence punishable under Section 302 IPC will have to be set aside.

3. Per contra, the learned counsel appearing for the third respondent submitted that by taking note of the continuation of the offences against women, the Hon’ble Supreme Court has issued a direction to the Trial Courts throughout the Country to add Section 302 IPC to the charge of Section 304 (B) so that death sentence can be imposed. Since the offence against women is heinous and barbaric, such direction issued by the Trial Court, as per the judgment of the Hon’ble Supreme Court in exercise of Article 142 of the Constitution of India, does not warrant any interference.

4. I have considered the above rival submissions made by the respective learned counsel and perused the records carefully.

5. There is no dispute on facts. A perusal of the complaint as well as the charge sheet filed would clearly disclose that the materials available on record that would constitute the alleged offences punishable under Sections 306, 498(4) and 304(B) IPC alone. When there is no material whatsoever, the Trial Court ought not to have ordered the offence coming under Section 302 IPC. It is trite law that a charge could be framed only with an alleged offence. When there is absolutely no material available on record to hold that the petitioner has committed the murder warranting punishment under Section 302 IPC, the alteration of the charges by the Trial Court is totally unwarranted.

6. Section 216 of the Code of Criminal Procedure clearly stipulates the power of a Court towards altering or addition to any charge at any time before the judgment is pronounced. It also mandates that before altering the same, the proposed decision will have to be read out and informed to the accused. Such an action will have to be done by the Trial Court on a consideration of the materials available on record both oral and documentary. Therefore, while exercising power under Section 216 of the Code of Criminal Procedure, there has to be material available on record and the Trial Court has to satisfy with such materials so as to warrant the required alteration. Considering the scope of Section 216 of the Code of Criminal Procedure, the Hon’ble Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat AIR 2004 SC 2078 : (2004) 5 SCC 347 : 2004 SCC (Cr) 1603 : LNIND 2004 SC 433 has held as follows:

“(8.) Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with framing of the charge during trial before a Court of S