DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM,

A.P., INDIA

PROJECT TITLE:

ALTERATION AND ADDITION OF CHARGES: BALANCING THE INTEREST OF

a a a a a a a a

a ACCUSED AS WELL AS THE PROSECUTION.

a a a a a

SUBJECT:

CRIMINAL PROCEDURE CODE, 1973.

NAME OF THE FACULTY:

Asst. Prof. SOMA. B

NAME OF THE CANDIDATE:

AISHWARYA.V.V.BUDDHARAJU

ROLL NUMBER:

2018LLB003

PROGRAM:

B.A., LL.B. Hons.

a a

DATE OF SUBMISSION:
a a

11th DECEMBER, 2020.

a a

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 ACKNOWLEDGMENT:

I am highly indebted to my Hon’ble Criminal Procedure Code Professor, Soma. B, for giving
me a wonderful opportunity to work on the topic: “Alteration and addition of charges:
a a a a a

a Balancing the interest of accused as well as the prosecution.” and it is because of her
a a a a a a a a a

excellent knowledge, experience and guidance, this project is made with great interest and
effort. I would also like to thank my seniors who have guided my novice knowledge of doing
research on such significant topic. I would also take this as an opportunity to thank my
parents for their support at all times. I express my sincere gratitude to each and every person
who have guided and suggested me while conducting my research work.

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 TABLE OF CONTENTS

1. SYNOPSIS………………………………………………………………………4
2. INTRODUCTION………………………………………………………………7
3. WHAT IS A CHARGE?........................................................................................7
a a a

4. PURPOSE AND OBJECT……………………………………………………....8

a a

5. LEGAL PROVSISONS……………………………………………………….…8
a

6. ALTERATION OF A CHARGE………………………………………………..9 a a a

7. NEED FOR EXPLAINING ALTERATION OR ADDITION…………..……11

a a a a a

8. REQUIREMENT OF SANCTION……………………………………………..11 a a

9. “AT ANY TIME BEFORE THE JUDGEMENT IS PRONOUNCED”...……..12

a a a a a a a

10. EXTENTION OF PERMISSIBILITY OF ALTERATION OF CHARGE…….13

a a a a a a

11. TEST OF PREJUDICE TO ACCUSED………………………………………..13

a a a a

12. COURT HAS JURISDICTION TO ADD/ALTER CHARGE………………...14

a a a a a

13. PROCEDURE AFTER ALTERATION OR ADDITION OF CHARGES…….14

a a a a a a

14. IS CRIMINAL REVISION CASE AGAINST S.216 ORDER

a a a a a a a

MAINTAINABLE?......................................................................................14
15. RECALLING WITNESSES WHEN CHARGES ARE ALTERED……………15
a a a a a

16. CONCLUSION…………………………………………………………….……19
17. BIBLIOGRAPHY AND WEBLIOGRAPHY……………………………….….20 a a

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 SYNOPSIS

TOPIC: a

Alteration and addition of charges: Balancing the interest of accused as well as the
a a a a a a a a a a a a a

a prosecution.

ABSTRACT: a

According to Sec 216(1) of Cr.P.C. any court may alter or add to any charge at any time
a a a a a a a a a a a a a a a a a

a before the judgment is pronounced. The section invests a comprehensive power to remedy the
a a a a a a a a a a a a a

a defects in the framing or non-framing of a charge, whether discovered at the initial stage of
a a a a a a a a a a a a a a a

a the trial or at any subsequent stage (including at the stage of S.313 statement) prior to
a a a a a a a a a a a a a a a

a judgement.1In a case dropping of unsustainable charges before most of the prosecution

a a a a a a a a a a a

a witnesses were examined, was not examined, was not permitted. The Code gives ample
a a a a a a a a a a a a

a power to the courts to alter or amend a charge whether by the trial court or by the appellate
a a a a a a a a a a a a a a a a a a

a court provided that the accused has not to face a charge for a new offence or is not prejudiced
a a a a a a a a a a a a a a a a a a

a either by keeping him in the dark about that charge or in not giving a full opportunity of
a a a a a a a a a a a a a a a a a

a meeting it and putting forward any defence open to him. The court has very wide power to
a a a a a a a a a a a a a a a a

a alter the charge; however, the court is to act judiciously and to exercise the discretion wisely.
a a a a a a a a a a a a a a a

a It should not alter the charge to the prejudice of the accused person. In a case the addition of a
a a a a a a a a a a a a a a a a a a a

a new charge at the stage of cross-examination of the prosecutrix was held bad as the trial court
a a a a a a a a a a a a a a a a

a did not inquire into the facts that gave rise to the prima facie case of the additional charge.
a a a a a a a a a a a a a a a a a

a The court’s unrestricted power to alter charges before the pronouncement of judgement has
a a a a a a a a a a a a

a been reiterated by the Supreme Court in Jasvinder Saini v. State (Govt. of NCT of Delhi).
a a a a a a a a a a a a a a a

a There is absolutely no impediment for the court to frame charges even in summons cases. The
a a a a a a a a a a a a a a a

a fact that summons cases can be proceeded with even without framing charges, will not in any
a a a a a a a a a a a a a a a

a way take away the powers conferred upon the court under Sections 216 and 221 even in the
a a a a a a a a a a a a a a a a

a matter of summons proceedings.

a a a

OBJECTIVE OF THE STUDY: To enumerate the various provisions in the Criminal a a a a a a a a a a a

a Procedure Code discussing about the alteration/modification of charges and to substantiate

a a a a a a a a a a

a them with various case laws to draw the evolution of these provisions.
a a a a a a a a a a a a

1
aEnumula Subbarao vs State, 1979 Cri LJ 258, 262 (AP);see also,A.N.Mukerji v. State,1969 Cri LJ 1203
a a a a a a a a a a a a a a a

a (All); Jayantilal Vrajlal Barot v. State of Gujarat , 1968 Cri LJ 1173 (Guj) ; Ram Nagina Roy v. Mohabir
a a a a a a a a a a a a a a a a a a a

a Kanu ,1995 Cri LJ 3084 (Gau); Tola Ram v.State of Rajasthan,1997 Cri LJ 2156 (Raj).
a a a a a a a a a a a a a a

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 1. To find out whether the currently existing provisions are balancing the interests of the
a a a a a a a a a a a a a

a accused and the prosecution or not. a a a a a a

SCOPE OF THE STUDY: a a a

The scope of the study is limited to the Criminal Procedure Code of India and the cases
a a a a a a a a a a a a a a a a

a determined by the High Courts and the Supreme Court of India.

a a a a a a a a a a a

RESEARCH QUESTIONS: a

1. Whether the currently existing provisions are successful in balancing the interests of
a a a a a a a a a a a

a the accused and the prosecution?

a a a a

2. Whether the powers given to court in this matter are too wide to lead to
a a a a a a a a a a a a a a

a misappropriation of the criminal justice system? a a a a a

RESEARCH METHODOLOGY: a

The researcher is conducting an empirical study on the above mentioned topic. The researcher
a a a a a a a a a a a a a

a is conducting a qualitative study of the series of judgments of various courts of India with
a a a a a a a a a a a a a a a

a respect to the alteration/ addition of charges.

a a a a a a

LITERATURE REVIEW: a

1. R. V. Kelkar’s Criminal Procedure: The researcher chose this book because of its fresh
a a a a a a a a a a a a a

a and detailed approach towards various concepts in the subject of criminal procedure.
a a a a a a a a a a a

a There is topicwise arrangement of the analysis of relevant provisions under each

a a a a a a a a a a a

a topic. The categorisation of the subject matter under various crisp sub headings made
a a a a a a a a a a a a

a it easier to swiftly jump between the sections. The free space alongside the content in
a a a a a a a a a a a a a a

a each page ensured that I need not use sticky notes additionally. I could write my ideas
a a a a a a a a a a a a a a a

a and doubts down in the space provided which made them easily accessible all at the
a a a a a a a a a a a a a a

a same place whenever I had to revise them.

a a a a a a a

2. Lawmann’s Criminal Manual: The small, portable book made my work easier due to
a a a a a a a a a a a a

a its compact size. But the size of the book is no comparison to the magnitude of
a a a a a a a a a a a a a a a

a specifics it is providing as the book provides landmark judgments that altered the
a a a a a a a a a a a a

a interpretation of that particular provision. These landmark judgments with their

a a a a a a a a a

a citations make our further research work easier.a a a a a a

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CHAPTERISATION:

1. Introduction
2. What is a charge?
a a a

3. Power to alter the charges

a a a a

4. Varying opinions of various High Courts

a a a a a

5. Cases in which the aforementioned sections are misappropriated

a a a a a a a

6. Cases in which the procedure established under the code was aptly followed
a a a a a a a a a a a a

7. Suggestions and conclusion a a

8. Bibliography a

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 INTRODUCTION:

One essential prerequisite of a fair trial in criminal law is to give exact information to the
a a a a a a a a a a a a a a a a

a accused with regards to the allegation against him. This is fundamentally vital so as to
a a a a a a a

enable the accused make preparations to defend himself. In all preliminaries under the
Criminal Procedure Code the accused is informed of the allegation in the first place itself.
If there should arise an occurrence of genuine offenses the Code necessitates that the
allegations are to be figured and reduced to writing with great precision & clarity. This
"charge" is then to be perused and disclosed to the accused person. The purpose of a a a

a framing a charge is to give intimation to the accused of clear, unambiguous and precise
a a a a a a a a a a a a a a

a notice of the nature of accusation that the accused is called upon to meet in the course of a
a a a a a a a a a a a a a a a a a a

a trial.2 Either it is a warrant case or a summons case, the point is that a prima facie case
a a a a a a a a a a a a a a a a a a

a must be made out before a charge can be framed. The Hon’ble Supreme Court, in Mohan
a a a a a a a a a a a a a a a

a Singh v. State of Bihar,3 has examined the law relating to charge while highlighting the
a a a a a a a a a a a a a a

a purpose of framing a charge against the accused in criminal cases.

a a a a a a a a a a

WHAT IS A CHARGE? a a a

Charge is a first notice to accused of his offence, it should convey to him in sufficient
clearness and certainty what the prosecution intends to prove and which case the accused
is to meet3 . Charge is an accusation made against a person in respect of an offence
alleged to have been committed by him.4 The basic requirement is that the charge must be a a a a a a a a a

a so framed as to give the accused person a fairly reasonable idea of the case which he has
a a a a a a a a a a a a a a a a a

a to face and the validity of the charge must be determined by the application of the test viz,
a a a a a a a a a a a a a a a a a

a has the accused a reasonable sufficient notice of the matter with which he is charged.5
a a a a a a a a a a a a a a

Section 2(b) of the Code of Criminal Procedure (in short Crpc) defines a charge as
a a a a a a a a a a a a a a

a ‘charge’ including any head of charge, when the charge contains more than one”.6
a a a a a a a a a a a a

a However the Code of Criminal Procedure does not define what a charge is. In law a
a a a a a a a a a a a a a a a

a charge may be define as a precise formulation of a specific accusation made against a

a a a a a a a a a a a a a a

a person of an offence alleged to have been committed by him.

a a a a a a a a a a a

2
V.C. Shukla V. State Through C.B.I.,1980 Supplementary Scc 92 At Page 150 And Paragraph 110 Of the
a a a a a a a a a a a a a a a a a

aReport.
3
Criminal Appeal No.663 Of 2010.
a a a a a

4
Birichh Bhuian V. State Of Bihar [Air 1963 Sc 1120].
a a a a a a a a a a

5
Chittranjandas V. State Of W.B [1964(3) Scr 237].
a a a a a a a a

6
Section 2(B) Of Code Of Criminal Procedure, 1973 (Cr.P.C.)
a a a a a a a a a

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 PURPOSE AND OBJECT: a a

a The purpose of a charge is to tell the accused, as precisely and concisely as possible,
a a a a a a a a a a a a a a a

a about the matter with which he is charged and the object of a charge is to warn the
a a a a a a a a a a a a a a a a a

a accused of the case which he has to answer. The forms in which the charges may be
a a a a a a a a a a a a a a a a

a framed are set forth in Second Schedule of the Code of Criminal Procedure. At the stage
a a a a a a a a a a a a a a a

a of Framing of charge the court is not expected to screen evidence or to apply standards as
a a a a a a a a a a a a a a a a

a to whether prosecution will be able to prove the case against accused.7 In the State v. Ajit
a a a a a a a a a a a a a a a a

a Kumar Saha8 the material on record did not show a prima facie case but the charges were
a a a a a a a a a a a a a a a a

a framed by the Magistrate. Since there was no application of mind by the Magistrate the
a a a a a a a a a a a a a a

a order framing charges was set aside by the High Court. It is a basic principle of law that
a a a a a a a a a a a a a a a a a

a before summoning a person to face a charge and more particularly when a charge sheet is
a a a a a a a a a a a a a a a

a actually framed, the court concerned must be equipped with at least prima facie material
a a a a a a a a a a a a a

a to show that the person who is sought to be charged is guilty of an offence alleged against
a a a a a a a a a a a a a a a a a

a him.9

In State of Karnataka v. Eshwaraiah10 two accused were separately charged for

a a a a a a a a a a a

a committing murder in furtherance of common intention. In the charge framed against one
a a a a a a a a a a a a

a accused the name of the other was not mentioned but charges were read over to each of
a a a a a a a a a a a a a a a a

a the accused in presence of the other accused and the plea has been recorded in the
a a a a a a a a a a a a a a a

a presence of each of the accused and their advocates. It was held that there was no scope
a a a a a a a a a a a a a a a a

a for misunderstanding part played by each accused and therefore the defect in framing of
a a a a a a a a a a a a a

a the charge was a mere irregularity.

a a a a a

THE LEGAL PROVISIONS: a a

The provisions regarding charge are contained in Sections 211 to 224 and 464 of the crpc.
Sections 211 to 214 of crpc deals with what a charge should contain. Section 211 &
Section 212 specifies about Contents of Charge and mentioning of particulars as to time
and place of the alleged offence in the charge.

Where an accused person is charged, along with others under Section 307/149 and
a a a a a a a a a a a a

a 302/149 of the Indian Penal Code but the others are acquitted and the accused alone is
a a a a a a a a a a a a a a a

7
C.P Malik V. State [1999 Cri Lj 45259delhi]
a a a a a a a a

8
1988 Cr. L.J. (NOC) 2 Cal.
a a a a a a

9
Nohar Chand v. State of Punjab 1984 Cr. LJ 886 (P&H).
a a a a a a a a a a a

10
1987 Cr. LJ 1658 (Karn).
a a a a a

8|Page
 a convicted under Section 302 and 307, the absence of specific charges against the accused
a a a a a a a a a a a a a

a under Section 302 and 307, is a very serious lacuna in the proceedings and it materially
a a a a a a a a a a a a a a a

a prejudices the accused and his conviction for those cannot be maintained.11
a a a a a a a a a a

In Musa Khan v. State of Maharashtra the Additional Sessions Judge framed charges
a a a a a a a a a a a a

a against the accused persons under Section 149 and 395 of the Penal Code. Since offence
a a a a a a a a a a a a a a

a under Section 395 of the Penal Code comes into existence only when act of dacoity is
a a a a a a a a a a a a a a a

a committed by five or more persons jointly the questions of applying Section 149 was held
a a a a a a a a a a a a a a

a to be mere surplusage. That is where a charge under Section 395 of the Penal Code is
a a a a a a a a a a a a a a a a

a framed no charge under Section 149 for the same offence need be framed.
a a a a a a a a a a a a

ALTERATION OF A CHARGE: a a a

The expression ‘alteration of charge’ means any addition or modification in the charges
a a a a a a a a a a a a

a levied by the Magistrate on the basis of the final report submitted by the investigating
a a a a a a a a a a a a a a

a officer in the case. It has to be noted that alteration under Section 216 does not include
a a a a a a a a a a a a a a a a

a deletion or removal of a charge. This is because it is presumed that if a charge is levied by

a a a a a a a a a a a a a a a a a a

a the Magistrate, it is levied only on the basis of the investigation and the evidence and
a a a a a a a a a a a a a a a

a proofs a collected a by a the a investigating a officer a during a such a investigation.12 a

Such charge is put before the court to be proved or disproved on the basis of the evidence.
a a a a a a a a a a a a a a a a a

a It is believed that the Magistrate would have applied his/her mind while determining the
a a a a a a a a a a a a a

a charges against the accused person and therefore, such charges can be excluded or deleted
a a a a a a a a a a a a a

a only on the basis of lack of evidence or that the prosecution fails to prove its case for that
a a a a a a a a a a a a a a a a a a

a offence beyond a reasonable doubt. Thus, while exercising its power to alter a charge, the
a a a a a a a a a a a a a a

a court can add more charges or amend the charge but cannot delete it completely.
a a a a a a a a a a a a a

Sec 216 Cr.P.C deals with alteration of charges which reads as follows:
a a a a a a a a a a a

216. Court may alter charge.

a a a a a

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
a a a a a a a a a a a a a a a a a

(2) Every such alteration or addition shall be read and explained to the accused.
a a a a a a a a a a a a a a

(3) If the alteration or addition to a charge is such that proceeding immediately with the
a a a a a a a a a a a a a a a

a trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the
a a a a a a a a a a a a a a a a a a

11
a Suraj Pal v. State of U.P. AIR 1955 SC 419.
a a a a a a a a a

12
a https://www.legalbites.in/alteration-and-withdrawal-of-charge/, last accessed 3rd December, 2020. a a a a a

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 a prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration
a a a a a a a a a a a a a a a

a or addition has been made, proceed with the trial as if the altered or added charge had
a a a a a a a a a a a a a a a a

a been the original charge.

a a a a

(4) If the alteration or addition is such that proceeding immediately with the trial is likely,
a a a a a a a a a a a a a a a

a in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the
a a a a a a a a a a a a a a a

a Court may either direct a new trial or adjourn the trial for such period as may be
a a a a a a a a a a a a a a a a

a necessary. a

(5) If the offence stated in the altered or added charge is one for the prosecution of which
a a a a a a a a a a a a a a a a a

a previous sanction is necessary, the case shall not be proceeded with until such sanction is
a a a a a a a a a a a a a a

a obtained, unless sanction has been already obtained for a prosecution on the same facts as
a a a a a a a a a a a a a a

a those on which the altered or added charge is founded.13

a a a a a a a a a

The section seeks to remedy the defects in the framing or non-framing of a charge at the
initial stage or at any subsequent stage of trial prior to the pronouncement of judgment.
The section invests sufficient power to the Courts to alter or amend a charge whether by
trial Court or by the appellate Court provided the accused is not prejudiced by such
alteration or change.

It may be done even at the appellate stage before the pronouncement of the judgement of
a a a a a a a a a a a a a a a

a appeal. But it must exercise a sound and wise discretion in so doing. If it wishes to strike
a a a a a a a a a a a a a a a a a

a out any of the charges it should do so concluding the trial, and should give the accused an
a a a a a a a a a a a a a a a a a

a opportunity of making such defence as he thinks fit; otherwise the trial is vitiated. Even if
a a a a a a a a a a a a a a a

a there is an omission to frame a proper charge at the commencement of the trial, if that
a a a a a a a a a a a a a a a a

a omission is discovered subsequently, it can be remedied by framing appropriate charge at

a a a a a a a a a a a a

a any time before the judgement is pronounced Section 216 of Cr P.C. enables the counts to
a a a a a a a a a a a a a a a

a alter the charges.14 Commenting on the provisions contained in Section 216 of the Code
a a a a a a a a a a a a a

a the Supreme Court in Kantilal v. State15 observed as follows:—

a a a a a a a a a

“The Code of Criminal Procedure gives ample power to the Courts to alter or amend a
a a a a a a a a a a a a a a a

a charge… provided that the accused has not to face a charge for a new offence or is not
a a a a a a a a a a a a a a a a a

a prejudiced either by keeping him in the dark about that charge or in not giving him full
a a a a a a a a a a a a a a a a

13
Section 216 Of Code Of Criminal Procedure, 1973 (Cr.P.C.)
a a a a a a a a a

14
Ratanlal And Dhirajlal ,“ The Code Of Criminal Procedure”, Lexis Nexis , 22nd Edition, 2018 Reprint, Page
a a a a a a a a a a a a a a a a a

a1153.
15
Air 1970 Sc 359, 362-363: (1970) 3 Scc 166.
a a a a a a a a a

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 a opportunity of meeting it and putting forward any defence open to him, on a charge
a a a a a a a a a a a a a a

a finally preferred against him.16”a a a

NEED FOR EXPLAINING ALTERATION OR ADDITION:

a a a a a a

Every such alteration or addition shall be read and explained to the accused.17 It is the
a a a a a a a a a a a a a a a

a basic fundamental of a fair trial that the accused should be well informed about all the
a a a a a a a a a a a a a a a

a charged against him so as to enable the accused to defend himself effectively against all
a a a a a a a a a a a a a a

a the charges against him. Following this principle like the original charges every alteration
a a a a a a a a a a a a

a or addition shall be read and explained to the accused.

a a a a a a a a a a

To quote Lord Porter from the privy council decision in Thakur Shah v. Emperor18 the
a a a a a a a a a a a a a a

a alteration or addition is "always, of course, subject to the limitations that no course should
a a a a a a a a a a a a a a

a be taken by reason of which the accused may be prejudiced either because he is not fully
a a a a a a a a a a a a a a a a

a aware of the charge made or is not given full opportunity of meeting it and putting
a a a a a a a a a a a a a a a

a forward any defence open to him on the charge finally preferred".19

a a a a a a a a a a a

But where the accused have been discharged of all the charges and no charge existed
a a a a a a a a a a a a a a

a pending against them, an application under Section 216 for addition or alteration in
a a a a a a a a a a a a

a charge will not be maintainable. The addition or alteration of a charge does not require
a a a a a a a a a a a a a a

a that the trial should be commenced de novo and the Court may continue proceeding
a a a a a a a a a a a a a

a further with the trial provided in its opinion no prejudice is caused thereby to the accused.
a a a a a a a a a a a a a a a

REQUIREMENT OF SANCTION: a a

If the offence stated in the altered or added charge is one for the prosecution of which
a a a a a a a a a a a a a a a a

a previous sanction is necessary, the case shall not be proceeded with until such sanction is
a a a a a a a a a a a a a a

a obtained, unless sanction has been already obtained for a prosecution on the same facts as
a a a a a a a a a a a a a a

a those on which the altered or added charge is founded.20

a a a a a a a a a a

Sub section (5) of S. 216 provides that if the offence stated in the altered charge for the
a a a a a a a a a a a a a a a a a

a prosecution of which previous sanction by some authority if required, the case shall not
a a a a a a a a a a a a a

a be proceeded with until such sanction is obtained.21 But if sanction has already been
a a a a a a a a a a a a a

16
Ibid.
a

17
Section 216 (2) Of Code Of Criminal Procedure, 1973 (Cr.P.C.)
a a a a a a a a a a

18
AIR 1943 PC 192.
a a a a

19
Ibid.
a

20
Section 216 (5) Of Code Of Criminal Procedure, 1973 (Cr.P.C.)
a a a a a a a a a a

21
http://www.shareyouressays.com/knowledge/section-216-of-code-of-criminal-procedure-1973- cr-p-c-
a a

explained/115040 last accessed 26th November, 2020. a a a a a

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 a obtained already for a prosecution on the same facts as those on which the altered or
a a a a a a a a a a a a a a a

a added charge if found, though for some other, the proceeding shall not be stayed and the
a a a a a a a a a a a a a a a

a trial while proceed as of no charges has been added.22

a a a a a a a a a a

“AT ANY TIME BEFORE THE JUDGEMENT IS PRONOUNCED”:

a a a a a a a

Any Court may alter or add to any charge at any time before judgment is pronounced.
a a a a a a a a a a a a a a a

a Section 216 CrPC gives considerable power to the trial court, that is, even after the
a a a a a a a a a a a a a a

a completion of evidence, arguments heard and the judgment reserved, it can alter and add
a a a a a a a a a a a a a

a to any charge, subject to the conditions mentioned therein. The expressions “at any time”
a a a a a a a a a a a a a

a and before the “judgment is pronounced” would indicate that the power is very wide and
a a a a a a a a a a a a a a

a can be exercised, in appropriate cases, in the interest of justice, but at the same time, the
a a a a a a a a a a a a a a a a

a courts should also see that its orders would not cause any prejudice to the accused.
a a a a a a a a a a a a a a a

It may be done at the appellate stage before the pronouncement of the judgement of
appeal. But it must exercise a sound and wise discretion in so doing. If ut wishes to strike
out any of the charges, it should do so before concluding the trial and should give the
accused an opportunity of making such defence as he thinks fit, otherwise, the trial is
vitiated.23 a

The application of S. 216(1) cannot be limited to altering or amending a charge in respect

a a a a a a a a a a a a a a a

a of an offence disclosed by the evidence during trial. Even if that is an omission is

a a a a a a a a a a a a a a a

a discovered subsequently, it can be remedied by farming appropriate charge at any time

a a a a a a a a a a a a

a before the judgement is pronounced.24 In Rajbir v.State of Haryana,25 the Supreme court
a a a a a a a a a a a a

a had directed all trial courts to ordinarily add S. 302 to the charge u/s 304B. A trial judge,
a a a a a a a a a a a a a a a a a

a acting on the direction of supreme court given in above case, framed additional charge u/c
a a a a a a a a a a a a a a

a 302 in a dowry death case, without advertising to the evidence adduced in the case. In
a a a a a a a a a a a a a a a

a Jasvinder Saini v. state (government of NCT of Delhi2),26 it was held by supreme court
a a a a a a a a a a a a a a

a that such framing of additional charge was unjustified and remitted the matter to trail
a a a a a a a a a a a a a

a court to reconsider whether the charge u/s 302 should be framed in the light of the
a a a a a a a a a a a a a a a

a evidence in the case. a a a a

22
Ratanlal And Dhirajlal ,“ The Code Of Criminal Procedure”, Lexis Nexis , 22nd Edition, 2018 Reprint, Page
a a a a a a a a a a a a a a a a a

a1155.
23
Chettu kalwar v. empror [(1922) 49 Cal 555]
a a a a a a a a a

24
Enumula subba rao v. state of AP [1979 CrLj 258]
a a a a a a a a a a

25
[AIR 2011 SC 568].
a a a a

26
[AIR 2014 SC 841].
a a a a

12 | P a g e
 EXTENTION OF PERMISSIBILITY OF ALTERATION OF CHARGE: a a a a a a

The object of section 216 Cr.P.C is to ensure a fair trail and the court is to see as to
a a a a a a a a a a a a a a a a a a a

a whether alteration or addition to any charge at any time before the judgement is
a a a a a a a a a a a a a

a pronounced is called for or not and if it is called for, such alteration or addition to any
a a a a a a a a a a a a a a a a a

a charge, must be on the basis of some evidence on record. It made clear that the words
a a a a a a a a a a a a a a a a

a “add to” means addition of a new charge and not addition of few words or corrections and
a a a a a a a a a a a a a a a a

a that an erroneous or improper charge may be corrected by re framing it properly or by

a a a a a a a a a a a a a a a

a adding to it or altering it for an offence provable by evidence taken by the trial court. In
a a a a a a a a a a a a a a a a a

a Rocky Banedick V. State of Sikkim,27 a prima facie case was made out by the prosecution
a a a a a a a a a a a a a a a

a for altering or adding the charges and the basic ingredients were present in the
a a a a a a a a a a a a a

a prosecution case and as such, thus it was held that the accused petitioners were not
a a a a a a a a a a a a a a

a prejudiced or handicapped in their defence. Non-permissibility of alteration of charges In

a a a a a a a a a a a

a Ganesh Pandhan v. State Of Orissa,28 it was held that in minor offence if the alteration of
a a a a a a a a a a a a a a a a

a charge converts the prosecution into acquittal or in major offence into convection, such
a a a a a a a a a a a a

a alteration of charge without addition is not permissible.

a a a a a a a a

TEST OF PREJUDICE TO THE ACCUSED:

a a a a a

Supreme Court in Anant Prakash Sinha @ Anant Sinha v. State of Haryana,29 has
a a a a a a a a a a a a a

a observed that while adding or altering a charge under Section 216 CrPC, the trial court
a a a a a a a a a a a a a a

a has to keep in view, the test of prejudice to the accused. Apex Court Bench comprising of
a a a a a a a a a a a a a a a a

a Justices Dipak Misra and Shiva Kirti Singh said that it is the duty of the trial court to bear
a a a a a a a a a a a a a a a a a a

a in mind that no prejudice is caused to the accused as that has the potentiality to affect a
a a a a a a a a a a a a a a a a a

a fair trial. Referring to Bhimanna v. State of Karnataka,30 the Apex Court bench said that
a a a a a a a a a a a a a a

a while adding or altering a charge under Section 216 CrPC, the trial court must keep in
a a a a a a a a a a a a a a a

a view the test of prejudice to accused.

a a a a a a

a COURT HAS JURISDICTION TO ADD/ALTER CHARGE: a a a a a

a The Court however observed that if the court has not framed a charge despite the material
a a a a a a a a a a a a a a a

a on record, it has the jurisdiction to add a charge and it has the authority to alter the charge.
a a a a a a a a a a a a a a a a a a

a The principle that has to be kept in mind is that the charge so framed by the Magistrate is
a a a a a a a a a a a a a a a a a a

27
[2003 Cri LJ 3309 (sikkim)].
a a a a a a

28
[1988 Cri Lj 500(Ori)].
a a a a

29
CRIMINAL APPEAL NO.131 Of 2016 (@ Special Leave Petition (Criminal) No. 837 Of 2016).
a a a a a a a a a a a a a a

30
(2012) 9 SCC 650.
a a a a

13 | P a g e
 a in accord with the materials produced before him or if subsequent evidence comes on
a a a a a a a a a a a a a

a record. It is not to be understood that unless evidence has been let in, charges already
a a a a a a a a a a a a a a a

a framed cannot be altered, for that is not is not the purport of Section 216 CrPC, the Bench
a a a a a a a a a a a a a a a a a

a said holding that the trial court must keep both the principles in view.
a a a a a a a a a a a a

PROCEDURE AFTER ALTERATION OR ADDITION OF CHARGES: a a a a a a

a 216. Court may alter charge.

a a a a a

(3) If the alteration or addition to a charge is such that proceeding immediately with the
a a a a a a a a a a a a a a a

a trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the
a a a a a a a a a a a a a a a a a a

a prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration
a a a a a a a a a a a a a a a

a or addition has been made, proceed with the trial as if the altered or added charge had
a a a a a a a a a a a a a a a a

a been the original charge.31 If, after the charge has been amended or added, the court thinks
a a a a a a a a a a a a a a a

a that it will not prejudice the accused in his defence or the prosecutor in the conduct of the
a a a a a a a a a a a a a a a a a

a case, it may proceed with the trial of the case as if the added charge was the original
a a a a a a a a a a a a a a a a a

a charge. a

(4) If the alteration or addition is such that proceeding immediately with the trial is likely,
a a a a a a a a a a a a a a a

a in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the
a a a a a a a a a a a a a a a

a Court may either direct a new trial or adjourn the trial for such period as may be
a a a a a a a a a a a a a a a a

a necessary.32 a

IS CRIMINAL REVISION CASE AGAINST S.216 ORDER MAINTAINABLE?

a a a a a a a

If, after a charge has been altered or amended, the court is of opinion that the accused or
a a a a a a a a a a a a a a a a a

a the prosecutor may suffer by proceeding with the trial, it may either direct a new trial or
a a a a a a a a a a a a a a a a

a adjournment the trial for a period as may be necessary for the accused to prepare his
a a a a a a a a a a a a a a a

a defence and the prosecutor to manage for his evidence. The legal position regarding it is
a a a a a a a a a a a a a a

a that neither the prosecution nor the defacto complainant or any one interested in the
a a a a a a a a a a a a a

a criminal case is entitled to file an application under Section 216 of Cr.P.C., and it is only
a a a a a a a a a a a a a a a a

a for the Trial Court to decide about framing of an additional charge or alter an existing
a a a a a a a a a a a a a a a

a charge upon arriving at a subjective satisfaction on the basis of existence of materials

a a a a a a a a a a a a a

a available on records. a a a

31
a Section 216(3) Of Code Of Criminal Procedure, 1973 (Cr.P.C.).
a a a a a a a a

32
a Section 216 (4) Of Code Of Criminal Procedure, 1973 (Cr.P.C.).
a a a a a a a a a

14 | P a g e
 It can also be culled out that as against an order passed by the Trial Court in an application
a a a a a a a a a a a a a a a a a a

a under Section 216 of Cr.P.C., a criminal Revision case under Section 397 of Cr.P.C., is
a a a a a a a a a a a a a a

a not maintainable as such an order did not finally determine the prosecution case and it is
a a a a a a a a a a a a a a a

a an interlocutory in nature. Thus, the Trial Court, in the present case, is right in dismissing
a a a a a a a a a a a a a a a

a he application, filed by the prosecution under section 216 of Cr.P.C., for inclusion of an
a a a a a a a a a a a a a a

a additional charge under Section 302 of IPC against the respondents / accused.
a a a a a a a a a a a

RECALLING WITNESSES WHEN CHARGES ARE ALTERED: a a a a a

Section 217 deals with this. The section requires the Court to enquire from the prosecution
a a a a a a a a a a a a a a

a or the accused, as to whether they would like to exercise their right to recall or re-summon
a a a a a a a a a a a a a a a a

a the witnesses or have further witnesses examined when a charge is altered or added after
a a a a a a a a a a a a a a

a the commencement of the trial. The provisions of this section are mandatory and the
a a a a a a a a a a a a a

a Court is bound to allow the prosecution and the accused to recall and examine any witness
a a a a a a a a a a a a a a a

a who may have been already examined. The omission to comply with the provisions of this
a a a a a a a a a a a a a a

a section is not curable under Section 464 of the Code.33 But if the Court is of the opinion
a a a a a a a a a a a a a a a a a

a that the application under Section 217 has been made by the prosecution or the accused
a a a a a a a a a a a a a a

a for delaying or defeating the ends of justice, it may refuse to recall or re-summon a
a a a a a a a a a a a a a a a

a witness.34 a

In Moosa Abdul Rahiman V. State of Kerala,35 it was held that if the court considers that
a a a a a a a a a a a a a a a a

a the prosecutor or the accused desires to recall or re-examine such witnesses for the
a a a a a a a a a a a a a

a purpose of vexation or delay or for defeating the ends of justice, he may refuse to re-
a a a a a a a a a a a a a a a a

summon the witnesses but for that he has to record his reasons so that the higher court
a a a a a a a a a a a a a a a a

a may decide the validity of the orderThe section invests sufficient power to the Courts to
a a a a a a a a a a a a a a

a alter or amend a charge whether by trial Court or by the appellate Court provided the
a a a a a a a a a a a a a a a

a accused is not prejudiced by such alteration or change.36

a a a a a a a a a

Calcutta High Court has held that a complainant has also entitled to bring to the notice of
a a a a a a a a a a a a a a a a

a the court that the charge already framed needs alteration and thereupon the court may
a a a a a a a a a a a a a

a alter the charges. A bench of Justice Ahsa Arora has passed the order in the case titled as
a a a a a a a a a a a a a a a a a

a Satrajit Roy vs The State of West Bengal on 12.06.2019. By an order dated 11th April,
a a a a a a a a a a a a a a a

33
Batuklal, “Commentary On The Cide Of Criminal Procedure, 1973” Orient Publishing Company, 5th
a a a a a a a a a a a a a

aEdition(Volume 1), 2012 Reprint , Page 2817. a a a a a a

34
Ibid.
a

35
[1982 Cri Lj 2087 (Ker)].
a a a a a

36
Batuklal, “Commentary On The Code Of Criminal Procedure, 1973” Orient Publishing Company, 5th
a a a a a a a a a a a a a

aEdition(Volume 1), 2012 Reprint , Page 2817. a a a a a a a

15 | P a g e
 a 2018 the trial court, upon perusal of the materials in the case diary, framed charge under
a a a a a a a a a a a a a a a

a section 306 of IPC against the accused/petitioner but on a subsequent date, on 21st
a a a a a a a a a a a a a

a August, 2018 the aforesaid charge was altered on the basis of an application under section
a a a a a a a a a a a a a a

a 216 of the Code of Criminal Procedure filed by the defacto complainant and offences
a a a a a a a a a a a a a

a under Section-302/376 were framed.

a a a a

Learned counsel for the petitioner sought to impress that the opposite party no.2
a a a a a a a a a a a a

a herein/defacto complainant has no locus standi to file an application for alteration of the
a a a a a a a a a a a a a

a charge since the power under section 216 of the Code of Criminal Procedure vested in
a a a a a a a a a a a a a a

a court is exclusive and the defacto complainant or the accused or the prosecution cannot
a a a a a a a a a a a a a

a seek addition or alteration of charge by filing any application as a matter of right.

a a a a a a a a a a a a a a

High Court observed "It is significant to mention that the aforesaid decision has been
a a a a a a a a a a a a a

a relied on by the petitioner but it is evident from paragraph 6 of the judgement that section
a a a a a a a a a a a a a a a a

a 216 of the Code of Criminal Procedure is an enabling provision for the Court to exercise
a a a a a a a a a a a a a a a

a its power under certain contingencies which comes to its notice or brought to its notice. In
a a a a a a a a a a a a a a a

a the case in hand, the error or omission in framing the charge was brought to the notice of
a a a a a a a a a a a a a a a a a

a the trial court by the defacto complainant and accordingly the charge was altered upon
a a a a a a a a a a a a a

a perusal of the material which was overlooked".

a a a a a a

High Court then held "It is evident that by a well reasoned order the trial court altered the
a a a a a a a a a a a a a a a a a

a charge upon perusal of the materials in the case diary and was satisfied that a prima facie
a a a a a a a a a a a a a a a a

a case has been made out against the accused for offences punishable under sections
a a a a a a a a a a a a

a 302/376 IPC. The order impugned does not suffer from any illegality or irregularity.
a a a a a a a a a a a a

a Therefore no interference is warranted with the same. a a a a a a a

This test provides that the standard to text the permissibility of an alteration or addition in
a a a a a a a a a a a a a a a

a charge is the prejudice caused to the accused due to such alteration or addition. Supreme
a a a a a a a a a a a a a a

a Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana,37 has observed that
a a a a a a a a a a a a a a

a while adding or altering a charge under Section 216 Cr.P.C, the trial court has to keep in
a a a a a a a a a a a a a a a a

a view, the test of prejudice to the accused. Section 216 (3) and (4) provides for the
a a a a a a a a a a a a a a a

a initiation of proceeding after the alteration or addition in charge. It provides for two
a a a a a a a a a a a a a

a different procedures for two different cases depending upon the nature of the case as to
a a a a a a a a a a a a a a

37
a Criminal Appeal No.131 Of 2016 (@ Special Leave Petition (Criminal) No. 837 Of 2016).
a a a a a a a a a a a a a

16 | P a g e
a whether beginning with proceeding intermediately would result in prejudice to the party
a a a a a a a a a a a

a or not. Further section 217 provides for the provision of recalling of witness after the
a a a a a a a a a a a a a a

a alteration or addition of the charges, if the case demands so.

a a a a a a a a a a

NAME OF THE CASE: Anant Prakash Sinha V. State of Haryana And Ors.
a a a

CITATION- AIR 2016 SC 1197 a a a a

NAME OF THE COURT: Hon’ble Supreme Court of India

a a a a a a a a

BENCH: Dipak Misra And Shiva Kirti Singh, J.

a a a a a a a

FACTS OF THE CASE:

a a a a

The present case emanates from lodging of an FIR for the offences which are under
Section 498A/323/34 of the Indian Penal Code, 1860 (hereinafter referred as IPC) against
the husband and the mother-in-law of the complainant alleging cruelty and some dispute
related to divorce. Charges were framed against the husband, after charge sheet was filed
against him under Sections 498A and 323 of the IPC.

During the trial, an application under Sec. 216 of the Criminal Procedure Code, 1973
(hereinafter referred as CrPC) was filed for framing another charge for which no
chargesheet was filed by the police. The same application under Sec. 216 of the CrPC
was allowed by the Magistrate which was challenged in the Sessions court but the
Sessions court did not find any fault in the order given by the Magistrate. This has led to
filing of petition under Sec. 482 of the CrPC by the husband of the complainant before
the Hon’ble High Court. The High Court held that the Court can exercise power of
addition or modification of any charge under Sec. 216 of CrPC on the basis of all the
materials which are placed before the court. The Hon’ble Court also said that the trial
court has stated sufficient reasons for addition of the charge and hence the impugned
order does not need any rectification or interference and hence the SLP has been filed by
the aggrieved party before the Hon’ble Supreme Court of India.

QUESTION OF LAW: a a

17 | P a g e
 1. Whether Magistrate has power under Sec. 216 CrPC to modify or alter the charge if an
a a a a a a a a a a a a a a a

a applicant is filed by the informant? a a a a a

2. Does the trial court can alter the charge if some evidence comes on record or any
a a a a a a a a a a a a a a a

a material which has already been placed on the record?

a a a a a a a a

REASONING GIVEN BY THE COURT: a a a a

Sec. 216 of CrPC confers jurisdiction on all Courts, consisting specific Courts too, to
a a a a a a a a a a a a a

a modify or add any charge framed earlier, at any time before the judgment is pronounced.38
a a a a a a a a a a a a a a

[1] The Courts are entrusted through statutory provisions to exercise the power of
addition of charge or modification of charges when some materials are placed before the
court, which has reasonable nexus with the charges which are sought to be added or
modified

[2] Merely because the charges are altered after the conclusion of the trial, that itself will
now not lead to the conclusion that it has ended in prejudice to the accused person and
contrary to the natural justice since the sufficient safeguards had been incorporated in
Sec. 216 CrPC which has later been brushed up through catena of judicial decisions.

[4] The courts are empowered enough to change the charges if there is something which
is left out during previous proceedings. The test is that it must be carried out by
considering the materials available on the record.

Sec. 226 clearly mandates that it is compulsory on the part of the Court to check that no
prejudice is caused to the accused and he is allowed to have a fair trial and that is an in
built safeguard in this section. It is obligatory to for the trial court to facilitate the trial in
such a manner that no prejudice in favour of any party arises and a fair trial is affected.39

[6] The accused must always be made aware of the case which is against him so that he
a a a a a a a a a a a a a a a a a

a can properly lead his defence.40

a a a a

JUDGMENT OF THE CASE: a a a

38
a C.B.I. v. Osan Karimullah Khan, (2014) SC 2234.
a a a a a a a

39
Clause (3) and (4) Cr. P.C.
a a a a a a

40
Rajkumar v. Union of India and Ors., (2012) ILR 5 Delhi 599.

18 | P a g e
 An accused can be punished for an offence which is less severe or minor than the one he
a a a a a a a a a a a a a a a a a

a has been charged with, except the accused satisfies the magistrate that there has been
a a a a a a a a a a a a a

a travesty of justice by not framing the charge under a particular provision, and some
a a a a a a a a a a a a a

a prejudice has been caused to the accused. In determining whether any error, omission or
a a a a a a a a a a a a a

a irregularity in framing the charges has led to a failure of justice, the Court must pay
a a a a a a a a a a a a a a a

a consideration to the fact i.e., whether an objection could have been raised at an earlier
a a a a a a a a a a a a a a

a stage during the proceedings or not. While adjudicating a particular question i.e.,
a a a a a a a a a a a

a regarding prejudice, the magistrate must consider the fact that every accused has a
a a a a a a a a a a a a

a fundamental right of fair and proper trail, where he must know what he is charged with
a a a a a a a a a a a a a a a

a and what are the facts and scenario which must be established against him, are elucidated
a a a a a a a a a a a a a a

a and explained to him in an unequivocal manner and in addition to this he must be

a a a a a a a a a a a a a a a

a provided with a fair and proper chance of defending himself against the charges framed
a a a a a a a a a a a a a

a against him. a

CONCLUSION:

After the above discussion about the alteration or addition of charge in Cr.P.C and the process
a a a a a a a a a a a a a a a

a therein, we can conclude that charge are one of the essential prerequisite of a fair trial in
a a a a a a a a a a a a a a a a

a criminal law. It provides exact information to the accused with regards to the allegation
a a a a a a a a a a a a a

a against him so as to enable him to defend himself efficiently against them. They are
a a a a a a a a a a a a a a

a fundamentally vital so as to enable the accused make preparations to defend himself. Many a
a a a a a a a a a a a a a a

a times there occurs a situation that there persists on defects in the formation of charge. These
a a a a a a a a a a a a a a a

a charges need to be amended as trial of the accused wrong charges amounts of gross
a a a a a a a a a a a a a a

a miscarriage of justice. Thus to prevent it, Cr.P.C provides for the provision regarding
a a a a a a a a a a a a

a alteration or addition of charges. Section 216 and 217 deal with it. The section seeks to
a a a a a a a a a a a a a a a

a remedy the defects in the framing or non-framing of a charge at the initial stage or at any
a a a a a a a a a a a a a a a a a

a subsequent stage of trial prior to the pronouncement of judgment and is doing apt job in
a a a a a a a a a a a a a a a

a fulfilling the voids left during the initial stages of trial.

a a a a a a a a a

BIBLIOGRAPHY AND WEBLIOGRAPHY: a a

BOOKS:

1. Criminal Manual, LAWMANN’S, Kamal Publishers, 2019 Edition. a a a a a a

2. D. Basu, Criminal Procedure (6th ed. 2014).

a a a a a a

19 | P a g e
 3. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
a a a a a a a a a a a a

4. V. Kelkar, Lectures on Criminal Law (8th ed. 2016).

a a a a a a a a a

5. Criminal Procedure Code, Wadhawa and Co., 18th edition , (2006).

a a a a a a a a a

6. R.V. Kelkar's Criminal Procedure (English, K.N. Chandrasekharan) Eastern Book

a a a a a a a a

a Company.
7. Batuklal, “Commentary On The Code Of Criminal Procedure, 1973” Orient
a a a a a a a a a

a Publishing Company, 5th Edition(Volume 1), 2012 Reprint , Page 2817.

a a a a a a a a a

JOURNALS AND ARTICLES:

a a

1. Chitnis, S.R., “Framing of Charge in Criminal Cases”, Eastern Book Company (2002)
a a a a a a a a a a a a

2. Jain, Tarun, “Framing of ‘charge’ in criminal trial: The law revisited”, Law in
a a a a a a a a a a a a

a Perspective (2010) a a

3. Sathasivam, Justice P., “Framing of Charge: Principles and Law”, The Legal Blog,
a a a a a a a a a a a

a (2011)

E-RESOURCES:

1. http://www.legalserviceindia.com/legal/article-312-alteration-of-charges-in-the-light-
of-anant-prakash-sinha-v-state-of-haryana.html
2. https://www.legalbites.in/alteration-and-withdrawal-of-charge/
3. https://www.latestlaws.com/latest-news/complainant-can-also-file-application-for-
alteration-of-charge
4. www.heinonline.in
5. www.manupatra.in
6. www.indiakhanoon.org

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