ORDER

This Criminal Original Petition is filed by the defacto complainant aggrieved by his petition seeking alteration of charge in the midst of the trial, which was dismissed by the trial Court.

2. The facts necessary and relevant to decide this petition is that on

02.03.2009, a complaint was given by the petitioner herein against one Govindan who is none other than his father-in-law. His complaint was taken for investigation in Crime No.489 of 2009 for the alleged offences under Sections 294(b), 323, 324, 506(ii) and 379 of IPC. On completion of investigation, final report filed for offences under Sections 294(b), 323, 324 and 506(ii) of IPC.

3. The grievance of the defacto complainant is that enough material available to frame charge against the accused under Section 307 of IPC. In the complaint he has stated the intention to commit murder, but scoring that portion. The Investigation Officer has proceeded his investigation and had filed the final report. In the course of trial, witnesses have spoken about the intention of the accused to cause death of the defacto complainant. Hence the charge has to be altered. However, when the petition filed to alter the charge, the trial Court without proper appreciation, dismissed the petition.

4. Chapter XVII of Cr.P.C., deals with Framing of charge, effect of error; and when alteration of charge can be done by the Court, which tries the offence and offender. Particularly, Section 216 of the Code reads as below:

“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 Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”

5. The trial Court is vested with discretion to alter or add any charge at any time before the judgment pronounced. Unfortunately, in this case the defacto complainant being a practicing Advocate has made an adventurous attempt to seek for alteration of charge in the midst of the trial, which has been rejected by the trial Court. This Court finds that in view of the petition filed in the midst of the trial to alter the charge, the trial Court has been forced to discuss the merit of the evidence so far recorded and the conduct of the defacto complainant.

6. It is the trial Court which has to decide about the framing of charge or the alteration of charge with the material available. In the course of trial, if any new facts other then available so far come to light, the statute empowers to alter the charge at any point of time before pronouncing of judgment invoking Section

216 of Cr.P.C.

7. The facts of this case in the view of the trial Court, no new facts to alter the charge has come to light from the evidence so far recorded. In case if any new fact emanates and requires alteration of charge, this Court has no doubt that the trial Court will exercise its power under Section 216 of Cr.P.C on appreciation of evidence and if necessary will alter the charge.

8. In the said circumstances, this Criminal Original