JUDGMENT :

SANJIB BANERJEE, CJ.

1. The appellant was charged with the commission of an offence under Section 3 (a) of the Protection of Children from Sexual Offences Act, 2012 for an incident that took place on November 20, 2012. The appellant claims that despite no evidence of penetration being produced, he has been convicted for rape. The additional ground canvassed is that the trial court completely altered the charges and added additional charges after the recording of the evidence was over.

2. Indeed, the appellant here made an application for cross-examining the prosecution witnesses upon the additional charges being framed. The appellant here contended that the last witness had been examined by the court on October 5, 2021 and it was only on December 8, 2021 that the trial court found it expedient to add charges under Section 375 read with Sections 354 , 354A and 354B of the INDIAN PENAL CODE , 1860 together with charges under Sections 7 and 8 of the Act of 2012 read with Sections 319 , 321 and 323 of the Penal Code. The application for further cross-examination of the prosecution witnesses was rejected by an order dated June 10, 2022, less than a fortnight before the matter was set down for final arguments.

3. In the short order of June 10, 2022, the trial court recorded the submission of the parties, noticed a few Supreme Court judgments that instruct that a trial court may add to or alter the charges at any time during the trial and, finally, declined the request on the ground that no prejudice had been occasioned to the appellant herein upon the addition of the charges.

4. It is necessary to deal with such aspect of additional charges being framed, before proceeding with the merits of the matter. There is no doubt that Section 216 of the Code of Criminal Procedure, 1973 empowers the court to alter or add to any charge at any time before judgment is pronounced. Sub-section (3) of Section 216 of the Code gives absolute discretion to the trial court to proceed with the trial or to proceed with the matter without adducing further evidence, if in the opinion of the trial court, no prejudice is likely to occasion thereby to the accused.

5. The mere fact that a judge possesses the power to alter or add to the charges at any time before the judgment is delivered, does not imply that the judge may wait till just before the judgment to undertake such exercise. Ordinarily, it is upon hearing the deposition and discovering that some offence other than the offences with which the accused had been charged may also have been committed in course of commission of charged offences, that the trial court would add the additional charges without going into the veracity of the allegations as to the commission of the other offences at such stage. Further, the court should also endeavour to ensure that if it perceives that additional charges be brought or the original charges be altered, the same be done at the earliest. In this case, it is evident that it was the deposition of the survivor that persuaded the trial court to add the additional charges. However, the survivor in this case took to the witness box on September 10, 2014, albeit before another judge.

6. It is possible in this case that after the transfer of the judge before whom the evidence was recorded at the trial, the immediate or the next successor in office may have gone into the records and deemed it necessary to ad