Legal Provisions of Section 216 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Court may alter charge:
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.
ADVERTISEMENTS:
Alteration of charge under Section 165 A of IPC to one under Sections 161/109, IPC in respect of abetment was held not to an illegality and it could be permitted under Section 216 of the Code.
Commenting on the provisions contained in Section 216 of the Code the Supreme Court in Kantilal v. State observed as follows:—
“The Code of Criminal Procedure gives ample power to the Courts to alter or amend a charge… provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving him full opportunity of meeting it and putting forward any defence open to him, on a charge finally preferred against him.”
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ADVERTISEMENTS:
The Privy Council speaking through Lord Porter had also expressed a similar view in its decision in Thakur Shah v. Emperor, wherein it was held that the alteration or addition is always subject to 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 a case, where the Magistrate refused to frame charge under Section 420, IPC in addition to the charge under Section 406, IPC already framed, the High Court of Orissa upheld the refusal on the ground that the late framing of a charge would have certainly caused prejudice to the accused and, in fact, no injustice has been caused to the complainant by refusal as there was no evidence of dishonest intention on the part of the accused person.
Alteration, additions or amendment in the charge may be made at any time before judgment is pronounced. But where the accused have been discharged of all the charges and no charge existed pending against them, an application under Section 216 for addition or alteration in charge will not be maintainable.
The addition or alteration of a charge does not require that the trial should be commenced de novo and the Court may continue proceeding further with the trial provided in its opinion no prejudice is caused thereby to the accused.
ADVERTISEMENTS:
Where in a criminal trial, new charge was added at the stage of cross examination of the prosecution, was held contrary to the provision of Section 216 as the trial Court did not inquire into the facts that gave rise to the prima facie case of the additional charge.
The Supreme Court in Sabbi Mallesu v. State of And!.; a Pradesh held that power of the Court to alter the charges is neither doubted nor disputed but in terms of subsection (2) of Section 216, Cr. P.C. it is obligatory on the part of the Sessions Judge to bring it to the notice of the accused and explain the same to him. The same having not been done in the instant case, it cannot be said that the requirements of Section 216 of Cr. PC. were duly complied with.
In Ishwarchand Amichand Govadia v. State of Maharashtra there was alteration of charge on the basis of subsequent certificate of doctor produced after four year indicating different causes of death. Held, it was not proper as the trial Court had kept the matter relating to production of subsequent certificate on record in abeyance to be decided after examination of the doctor.
The Supreme Court directed that trial Court should defer question of framing additional charge till examination of doctor and after examining relevance and acceptability of subsequent certificate.
However, while substituting one charge for another, the Court cannot ignore the basic requirement of a charge. Thus, a charge for rape cannot be altered into a charge for adultery, because the complaint of the husband is a preliminary requisite for the offence of adultery.
Sub-section (5) provides that when previous sanction is necessary for the new or altered or added charge, it should be so obtained, but it will not be necessary to do so if sanction had already been obtained for a prosecution on the same facts as those on which the new or altered charge is founded.
