A court can add or alter any charge at any time
The Section 216 CrPC enables a court to alter or add to any charge at any time before judgement is pronounced, and an improper or erroneous charge can also be corrected under the section by reframing it properly, says the High Court of Kerala (HCK) in Johnkutty M V v State of Kerala [2024:KER:14955 : 2024 (2) KHC 397].
Every such alteration or addition shall be read and explained to the accused as per Section 216(2) of the CrPC.
The judgement is in accordance with the Supreme Court (SC) judgement in CBI v Karimullah Osan Khan [AIR 2014 SC 2234] and in Dr Nallapareddy Sridhar Reddy v. State of Andhra Pradesh [AIR 2020 SC 753].
Charge is a vital document
Charges written document containing the precise allegation and description of the offence which the court frames from the materials produced before it. The purpose of a charge is to inform the accused what he is going to be tried for, and to enable him to defend himself.
A proper charge is vital in a criminal trial and the Magistrate must pay careful attention to the materials produced before him but not limited to the final report alone.
Application of mind is limited when taking cognizance
The HCK adds that after taking cognizance of a particular offence, the court can frame a charge for different offences before the commencement of the trial.
But when a Magistrate takes cognizance of an offence, though there is application of mind it is only for the purpose of issuing process against the accused for the offences alleged.
When framing charge the application of mind is more penetrative
After the accused appears and at the time of framing of charge either under Section 228 of the Code of Criminal Procedure (CrPC) by the Sessions Court, or under the Section 240 CrPC by the Magistrate Court, the court would have to go through the prosecution papers once again, and can even hear the accused.
If other offences are then made out or a different offence is made out from the records, the court cannot ignore it on the ground that cognizance has not been taken for those offences.
There are four stages in a criminal proceeding: the stage of taking cognizance the stage of framing of charge, the stage of evidence, and the stage of judgement. When the case proceeds from the stage of framing of charge and onwards, the approach of the court becomes more penetrative.
Hence at the time of framing of charge the court delve deeper into the prosecution records.
Charge already framed can be altered even before judgement
Charge framed by the Magistrate is in accordance with the materials produced before him or if subsequent evidence comes on to records, the charges already framed can be altered before evidence has been let in.
Even after the completion of evidence, arguments heard and judgement reserved, trial court can alter or add to charge.
An erroneously framed charge can be reframed
An erroneous and improper charge may be corrected under Section 216(1) of the CrPC by reframing it properly or by adding to it or altering it, at any time, prior to pronouncement of the judgment. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge.
No fault in accused or the prosecution applying for addition
There was no fault on the part of the trial court in entertaining the application filed by the informant (either the accused or the prosecution) seeking addition of charge.
It was held that the informant had, in a way, only brought to the notice of the trial court the defect in framing of the charge which could have been rectified by the court suo motu. (Anant Prakash Sinha v. State of Haryana : AIR 2016 SC 1197).
Add or alter a charge If materials are available
An analysis of the decisions referred to above leads to the conclusion that the test to be applied in exercising the power under Section 216(1) of the Code to add a charge is the existence of sufficient materials on record which have direct link, nexus or connection with the ingredients of the offence, says the High Court of Kerala in N P Hamza v State Of Kerala [ 2021 (2) KLT 88].
Parties cannot apply for alteration of charge
The power to alter the charge in a criminal case exists only with the court and it can be done only when the details of any charge come to the court’s knowledge.
Any alteration of charge cannot be done by the court based upon and application by any of the parties to the trial, says the Supreme Court (SC) in P Kartikalakshmi v Shri Ganesh & Another.
This judgement has been relied on by the High Court of Kerala in State of Kerala v Azeez [ 2024 (3) KHC 586].
SC says the power must be used judiciously
The SC says that the only constraint on the exercise of court’s power under Section 216 CrPC is the likelihood of causing prejudice to the accused by the addition or alteration of charges.
Therefore, the court must exercise its powers under Section 216 CrPC judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial.
References
- Johnkutty M V v State of Kerala [2024: KER:14955]
- Dr Nallapareddy Sridhar Reddy v State of Andhra Pradesh
- CBI v Karimullah Osan Khan [AIR 2014 SC 2234]
- Anant Prakash Sinha v. State of Haryana : AIR 2016 SC 1197)
- N P Hamza v State Of Kerala [ 2021 (2) KLT 88]
