(Author: Palak Jain, pursuing LLB from Faculty of law, Delhi University.)
The answer to this question is yes, the appellate court can alter, amend, or modify a charge according to section 216 of The Code of Criminal Procedure,1973 appearing in chapter XVII.
Section 216 Cr.PC. envisages the accused and the additions to the alterations of charge may be done at any time before judgement is pronounced. The trial will then take place from the altered charge. Sub-section(1) of section 216 specifies the power of the court to amend or alter any charge and sub-section (2) to (5) prescribe the procedure to be followed after the modification of charge. When the accused is discharged of all the charges and no charge existed against them, an application under section 216 is not maintainable.
Section 216(1) says that Any Court may alter or add to any charge at any time before judgment is pronounced. This section applies to all courts. It provides complete power to courts to alter or amend a charge and cure the defects in framing or non-framing of charges at any time before judgement is pronounced.
A charge once framed cannot be deleted but it can be altered. For adding a new charge, court must have some material in the form of evidence to justify them. Only when there exists some material before the court which has some connection or list with charges sought to be amended, added, or modified.
State of Maharashtra v Salman Salim Khan(2004) 1 SCC 525
In this case, the accused was originally charge-sheeted for the offence under section 304A of IPC, which is triable by a Magistrate. Later, the charge was altered to section 304 part II, which is triable by Sessions Court, was held to cause no prejudice to the accused. Alteration of the charge depends upon the evidence before the Court. It was held by High Court that there was no material to frame a charge for the offence punishable under section 304 Part II. The trial was directed to proceed on the basis of charges framed by the Magistrate’s Court. The Supreme Court clariﬁed that if the Magistrate concludes that there was suﬃcient material to charge the serious offence under section 304 Part II, he could proceed to do so, without being hampered by the ﬁndings of the High Court or Session Court.
Surinder Kumar v State of HP 2003 Cr LJ 2900, in this case, petitioner was charge-sheeted under section 409,420,467.468,471 and 120B of IPC. When the trial was at the final stage, and the case was fixed for final hearing, the prosecution moved an application under 216 of CrPC for the addition of a charge under section 409, IPC. The addition was allowed at the appellate stage. The addition of the charge under section 420 as a penal provision was allowed because it must have been left out by mistake.
Section 216(2) says that Every such alteration or addition shall be read and explained to the accused. Any edition made ought to be pursued, read, and described to the accused in the language understood by him.
Section 216(3) says that 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.
Section 216(4) says that 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.
The importance of this section lies in prescribing the limitations imposed on this discretionary power of the courts to ensure that the accused is not prejudiced as a result. For example, in subsection (3) and (4) contemplate situations where such changes do not particularly affect the accused side, then the court in its discretion can proceed immediately with the trial as the alteration has been part of the original charge. But if it causes an impact on the accused, then the court can order a new trial or adjournment.
Comparison between Sections 216(3) & (4)
|S.N.||Section 216(3)||Section 216(4)|
|1||Alteration or addition does not affect parties||Alteration or addition does affect parties.|
|2||Proceeding shall continue.||Proceeding will not continue. Court may direct either for new trial or adjournment of proceeding.|
Section 216(5) says that 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 has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
For example if Court has added charge of Sedition, the case shall not be proceeded with until such sanction is obtained. Reason is that section 196 says that for sedition there must be prior sanction prescribed Government.
Anant Prakash Sinha vs. State of Haryana2016, in this case an application was filed under section 216 of CrPC for framing of additional charge under section 406 IPC. It was held that the court can change or alter the charge if there is defect or something is left out. The court must testify that it must be founded on the material available on record. It has to be kept in mind that the charge has to be according to the complaint or the FIR or the material brought on record during the trial. But it has to be done at any time before pronouncement of judgment.
Bhimanna vs State Of Karnataka 2012, Court held that power empowering alteration/addition of charges can also be exercised by the appellate court, in exercise of its powers under Sections 385(2) and 386 Cr.P.C.
In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078, Court held that during trial the Trial Court, 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, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.
In Kantilal Chandulal Mehta v. State of Maharashtra & Anr., AIR 1970 SC 359, Court while dealing with the power of the appellate Court held that the Code gives ample powers to the Courts to alter or amend a charge whether by the trial Court or by the appellate Court, provided that the accused is not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge ﬁnally preferred against him.
The appellate court has power to modify any charge but no finding or sentence, pronounced or passed shall be deemed to be invalid merely on the ground that no charge has been framed unless the Court of Appeal or revision thinks that the omission to do so, has occasioned failure of justice, and if in the opinion of any of these courts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge.
The court can make a change upon its own motion or by the prosecution, and it is important to note that a court cannot ignore the basic requisites of a charge when engaging in these changes.