Magistrate can change or alter the charge u/s 216 Cr.PC if there is defect or something is left out #indianlaws

Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further the trial court can alter the charge if some evidence has come on record or on the basis of the material already on record. 

The present matter originates from lodging of FIR for the offences punishable under Section 498A/323/34 of the Indian Penal Code (IPC) against the husband and the mother-in-law alleging that the husband was insistent upon getting mutual divorce and on her resistance, he had physically assaulted her and deprived her of basic facilities of life. Charges were framed against the husband, after charge sheet was filed against him alone under Sections 498A and 323, IPC.

During the pendency of trial, an application under Section 216 of the Code of Criminal Procedure (CrPC) was filed by the informant-wife for framing an additional charge in relation to offences against which no charge-sheet was filed. The application was allowed by the Magistrate, challenged thereafter by way of Revision before the Sessions Court. Revisional Court did not found any fault with the order framing additional charge, and this lead to filing of petition under Section 482 Code of Criminal Procedure by Husband before the High Court.

High Court vide its impugned order opined that the Court can exercise power of addition or modification of charge under Section 216 Code of Criminal Procedure on the basis of material before the court. High Court also observed that the trial court has spelt out the reasons that have necessitated for addition of the charge and hence, the impugned order did not warrant any interference.

Thus, the question that was there for the Court was to determine as to whether Magistrate has power under Section 216 Code of Criminal Procedure to alter or modify the charge on the basis of an application filed by the informant and further should the trial court alter the charge if some evidence has come on record or on the basis of the material already on record.

It was observed and held that under Section 216 of the Code Court may alter or add to any charge at any time before judgment is pronounced. Whenever such alteration or addition is made, the same is to be read out and informed to the accused.

Section 216 Code of Criminal Procedure confers jurisdiction on all Courts, including the designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced. The Courts can exercise the power of addition or modification of charges under this provision only when there exist some material before the court, which has some connection or link with the charges sought to be amended, added or modified. Merely because the charges are altered after conclusion of the trial, that itself will not lead to the conclusion that it has resulted in prejudice to the accused because sufficient safeguards have been built in Section 216 Code of Criminal Procedure and other related provisions. Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Code of Criminal Procedure.

It is obligatory on the part of the Court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 Code of Criminal Procedure. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. The accused must always be made aware of the case against them so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused.

The instant case on facts was held as not one where trial or any area by which a private lawyer takes control of the proceedings. An application was filed by the informant to add a charge under Section 406 Indian Penal Code as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the Magistrate about the defect in framing of the charge. The court could have done it suo motu. Instant appeal was accordingly dismissed.

[Anant Prakash Sinha vs. State of Haryana and Ors.]

(SC, 04.03.2016)

Criminal Appeal No. 131 of 2016