ALTERATION OF CHARGE

Question asked on: 02/04/2015

How does court alter the charge under the code of criminal procedure? 

Advised by: Shivendra Pratap Singh,

Alteration of charge may be taken place during the trial if court found that there is sufficient material on record to show commencement of any offence which is not charged by the court.

The court is empowered under section 216 of the code of criminal procedure, to alter or add the charge at any time before pronouncement of judgment. 

The phrase “At any time before judgment is pronounced” indicates that the power is very wide. This power should be used in appropriate case and the court should also see that its order would not cause any prejudice to the accused. Interest of justice should be the ultimate goal in the use of this power.

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 Sessions and trial of Warrant -cases by Magistrates respectively. Whenever such alteration or addition is made the same is to be read out and informed to the accused.

The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person.

Tulsabai v. State of M.P.; 1993 Cri LJ 368(M.P.) : at the time of framing of the charge, the Court need not to make elaborate enquiry. The order of framing charge even cannot be interfered if prima facie materials are found.

In Thakur Shah v. Emperor AIR 1943 PC 192; The Privy Council spoke on alteration or addition of charges as follows: 

“The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred.”

In Jasvinder Saini and others v. State (Government of NCT of Delhi) (2013) 7 SCC 256; The Supreme court of India examined the scope of Section 216 CrPC and held as follows: 

“Once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial.”

The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alteration would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.

In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078 : The supreme court is held that  Whenever an application is moved for alteration or addition of the charge under section 216 of the code, the court should decide on a consideration of broad probabilities of the case, based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary.

Section 216 of the Code does not provide any legal bar, he has done nothing but only brought to the notice of the court about the factual position of the material which has been collected by police during investigation against the petitioners. The court has power to examine the material and to pass the order for adding or amending the charge provided sufficient opportunity should be given either to defend the accused or prosecution to prove the charge against the accused persons.

The Sessions Judge had no power, under the Code of Criminal Procedure, to drop any charges under which the accused had been committed for trial. He can in the exercise of the powers under s. 226 of the Code, frame a charge, or add to or otherwise alter the charge as the case may be in cases where a person is committed for trial without a charge or with an imperfect or erroneous charge.

Quashing of charge State of Maharashtra v. Ishwar Piraji Kalpatri and others; 1996 Cri LJ 1127 SC: if on the basis of allegations a prima facie case is made out, High Court has no jurisdiction as to quash the proceedings and at the initial stage.

It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed.

Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record.

State Of Delhi vs Gyan Devi And Ors; AIR 2000 SC; The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that the accused committed the particular offence.

Amit Kapoor vs Ramesh Chander & Anr; AIR 2012 SC : Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge.

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Shivendra Pratap Singh

Advocate, Lucknow

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