A court can alter charges prior to judgment if supported by sufficient evidence without causing prejudice to the accused.

O R D E R

The petitioner is the 8^th accused in S.C.No.31/2013 on the file of the Additional Sessions Court-III, Thalassery (for brevity hereinafter referred to as ‘Trial Court’), which has originated from Crime No.43/2009 registered by the Panoor Police Station, alleging the commission of offences punishable under Sections 143 , 147, 118, 109, 148, 341 and 302 read with Sections 149 and 120B of the Indian Penal Code (‘ IPC ’) and Section 27 (1)(a) of the Arms Act .

2. The gravamen of the prosecution's case is that:

On 12.3.2009 at around 18.50 hours, the accused persons, in prosecution of their common intention, had hatched a conspiracy and, after forming into an unlawful assembly, committed rioting and the murder of a person named 'Vinayan'. The 8^th accused (petitioner) had concealed the commission of the offences committed by accused Nos. 1 to 5. Thus, the petitioner has committed an offence under Section 118 IPC .

3. The petitioner’s case in the criminal miscellaneous case is that the case was initially committed to the Court of Principal Sessions Judge, Thalassery, who had framed the charge (Annexure 2) as against the petitioner for allegedly committing the offence under Section 118 IPC . Subsequently, the case was made over to the Trial Court, which altered the charge (Annexure 3) by adding the offences under Sections 143 , 147 and 148, 506, 302 read with Section 149 as against the petitioner, in addition to . Immediately, the petitioner filed an application to alter the charge as against him. However, by Annexure 4 order, the Trial Court dismissed the said application, holding that the charge under Section 302 read with as against the petitioner cannot be deleted. Simultaneously, the Trial Court again altered the charge (Annexure 5) by adding Sections 120B and 341 as against the petitioner. The Trial Court has failed to appreciate the fact that the Principal Sessions Judge had already framed the charge against the petitioner. Only the offence under is attracted against the petitioner. The addition of offences under , r/w 149 has caused grave prejudice to the petitioner. There is no material to prove that the petitioner had any role in inflicting injuries on the deceased or that he was at the scene of the occurrence. The altered charges (Annexures 3 and 5) and Annexure 4 order are patently erroneous and unsustainable in law. Hence, the Crl. M.C.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The learned counsel for the petitioner vehemently argues that there is no material to prove the petitioner's culpability in the crime. To attract the offence under Section 149 IPC , it is imperative that the petitioner was part of the unlawful assembly. The materials on record establish that the petitioner was not at the scene of the occurrence on the uneventful date. It is without considering this crucial aspect that the Trial Court has added the offences against the petitioner, which have caused severe prejudice to the petitioner. Hence, the altered charges and the impugned order may be set aside.

6. The learned Public Prosecutor seriously opposes the Crl.M.C. He submits that, under Section 216 of the Code of Criminal Procedure, which is analogous to Section 239 of the Bharatiya Nagarik Suraksha Sanhita , Courts have been bestowed with the power to alter or add any charge at any time before the judgment is pronounced. Invoking the said power and after appreciating the materials on record, the Trial Court has altered the charge. It is also well settled that there is no necessity to give specific reasons to