Author: Ridhi Arora
Introduction
Section 216 of the Code of Criminal Procedure (“Code”) provides that before judgment is delivered in an ongoing criminal trial, the Court may, by addition alter the charges framed against the accused person. Such alteration of charges must be explained to the accused, and the Court must proceed with the trial only if it can be established that the trial will not prejudice against the accused person. This provision enables framing of charges which might need to be framed against the accused person in view of new evidence brought on record. Under Section 216(4), a new trial may be directed or the trial may be adjourned for any period as it may be deemed necessary if the alteration of charges is likely to prejudice either the accused or the prosecutor. For example, if a person is accused under Section 375 of the Indian Penal Code (“IPC”) and the victim subsequently dies, charges under Section 302 of the IPC may be added to the existing charge for the offence of rape against the accused.
In this post, we have discussed the test for invoking the power under Section 216 of the Code, who can file for alteration of charges and the grounds that are taken into consideration while altering charges under Section 216 of the Code.
Test for invoking section 216 of the code
In Anant Prakash Sinha v. State of Haryana, the Apex Court laid down that the test for adding or altering a charge under Section 216 is that such addition or alteration must be effectuated by material brought on record. The alteration could be made due to the FIR, documents or material placed on record as evidence. If charges have not been framed despite the evidence that has been placed on the record, the Court is well within its rights to alter the charges under the purport of Section 216 of the Code. The evidence brought on record must have a direct link or nexus to the offence for which charges are to be added. For instance, the death of the victim has a direct nexus to provide for addition of charge under Section 302 of the IPC.
It is no longer res integra that Section 216 of the Code is an enabling provision provided for Courts to exercise their powers under contingencies where any material record may have been left out. In a situation where it comes to the knowledge of the Court that it is imperative for them to alter charges, it may do so without passing any order. This position of law was laid down in the case of P Kartikalakshmi v Sri Ganesh.
The Courts can exercise the power under Section 216 of the Code to alter or modify the charges only when there exists material evidence before the Court which has some connection or link with the charges sought to be amended, added or modified. Alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court, as held in Harihar Chakravarty v. State of West Bengal.
Thus, an alteration of charges has to be done in light of evidence in the form of documents or FIR filed by the complainant.
Who can file for alteration of charges?
In Jasvinder Saini and others v. State (Government of NCT of Delhi), it was held that there can be no question of the competence of the Court to alter the charges, as Section 216 of the Code lays down the procedure to be followed by the Court once it has decided that the charges need to be altered. Section 216 of the Code is read with Section 217 of the Code, which provides for recall of witnesses after the alteration of charges has been made. If the Court is of the opinion that the charges are defective or if it considers necessary to alter the charges in light of the evidence that is placed on record, it may do so by the statutory power provided by Section 216 of the Code.
Recently, the Calcutta High Court in Satrajit Roy v. State of West Bengal has recognized that a complainant may file an application for alteration of charges under Section 216 of the Code. The contention of the petitioner-accused was that the complainant could not file an application for addition of charges, which had been allowed by the Trial Court, because the power under Section 216 of the Code is exclusively vested in the Court. The accused further stated that the complainant had no locus-standi to seek alteration of charges. The Court ruled that the complainant (who was the father of the deceased) was well within his rights in seeking alteration of charges. Reference was made to the judgment delivered in Ratanlal v. Prahlad Jat and Others, wherein it was held that the concept of locus standi of the complainant is foreign to criminal jurisprudence. Since the purpose of criminal law is to punish the offender, the right to initiate the proceedings against the accused person cannot be restricted into the straight jacket formula of establishing locus standi.
Either the Court itself can take cognizance for the need for alteration in charges or the complainant may bring to the notice of the Court that a necessity has arisen for the Court to frame additional charges in light of any material evidence on the record.
Considerations for alteration of charges
The primary consideration while invoking the power under Section 216 of the Code is that while altering the charges the accused person should not face any prejudice. This principle finds relevance even in the pronouncements of the Privy Council The accused should not be kept unaware of the changes in charges made by the Court and must be given an ample opportunity to formulate a defence against the newly added charges. It is a statutory requirement under Section 216 (2) of the Code that “every such alteration or addition shall be read and explained to the accused.”
Alteration in charges can be made at any time before the pronouncement of the judgment and the fact that the alteration in charges took place after the trial had been completed is not considered prejudicial to the accused. Several safeguards have been built within Section 216 such as Section 216(4) of the Code which provides that in order to avoid prejudice to the accused, the Court may order a new trial or adjourn the trial for a period as they may deem necessary.
Courts have also recognized that the alteration of charges must be done in the interests of justice. For instance, in CBI v. Karimullah Osan Khan, additional charges against the accused of criminal conspiracy under the IPC were framed for his involvement in the Bombay blast case. CBI had filed for alteration in charges on the basis of the confession of the accused person. The Court held that it was in the interest of justice to allow additional charges to be framed under Section 120B of the IPC and other relevant provisions of law.
The accused cannot be denied the right to a fair trial and the same was recognized by the Supreme Court in Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh. The Court has vested power to alter changes but the right of the accused to have a fair trial must not be constrained by alteration of charges made under Section 216 of the Code.
Conclusion
Multiple judicial pronouncements have recognized the necessity of the Courts to alter charges in the interest of justice. However, the same is not unchallenged or without constraints. Section 216 of the Code statutorily lays down that the accused must not be prejudiced by the alteration of charges made by the Courts. At the time of framing of charges, certain evidence might have been overlooked and the charges framed against the accused could be defective. The Court is well within its rights to alter such defective charges and make additions to it within Section 216 of the Code. In 2019, the right of the complainant to seek the alteration of charges under Section 216 of the Code was recognized by the Calcutta High Court in Satrajit Roy v. State of West Bengal. The purpose behind providing Courts with the right to alter charges is to avoid a miscarriage of justice that may be caused either by – trying the accused for an offence with a lesser sentence than the one committed by him or by trying the accused for an offence with a greater sentence than the one committed by him. An accused must be tried for all offences committed by him, some of which might not be made out on a prima facie basis, but are uncovered during the course of the trial when evidence is brought on record. Section 216 of the Code is a relevant provision that ensures that the victim of a crime is awarded justice by the criminal justice system.
About the Author: Ridhi [2018-23 Batch] is pursuing B.A.LL.B(Hons) from Gujarat National Law University, Gandhinagar.
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