Do Courts have power to alter charges?

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Author: Akash Dubey

Introduction: Charges under CrPC

According to the procedure laid down under the Criminal Procedure Code, after an
arrest, a police report under Section 173 of CrPC is what follows and while the accused is
facing a trial in a court-house as a form of a preliminary hearing, the prosecutor has the
duty to call out all the alleged charges the accused is charged with and the judge decides
whether there is enough substance to the case to proceed the case further with. The
aforementioned Section lays down the procedure and prerequisites for police officers to
be followed and have to be complied with. At the stage of framing of a charge, the court
has to be satisfied only prima facie about the existence of sufficient grounds for
proceeding against the accused. The court is not required to appreciate evidence to
conclude whether the materials produced are sufficient for bringing home guilt of the
accused. The only question is whether the material on record supports a triable case . Each
case depends upon peculiar facts and circumstances.

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Further, the initial requirement of a fair trial in criminal cases is the precession of the
statement that accuses the accused or the culprit. CrPC is drafted in such a way that it
seeks to secure this requirement, first, in Sections 211 to 214 of CrPC it mentions the
ingredients of a charge; secondly, stipulating in Section 218 of the code it is clearly stated
that for every distinct offence there should be a separate charge; and lastly, by laying
down in the same section that each charge should be tried separately, so that what is
sought to be achieved by the first two rules is not nullified by a joinder of numerous &
unconnected charges[i].

The Court can also exercise Sections 215, 464 and 465 of the Code, which can be read
together since they deal with the same question of errors and omissions. Section 215
enacts that no error or omission in the charge will be regarded as material unless it has
occasioned a failure of justice.

Alteration of Charges
Another important aspect of the concept of charge is the alteration of the same, which is
provided in Section 216 of the code. The Court is empowered with the discretion that it
may alter or change the charges anytime during or before the commencement of a
trial[ii], the first requirement of the same is laid down in Section 216(1), that such
alteration has to be done prior to the pronouncement of judgment.

Further, the court has to make sure that such alteration is not done keeping the rights of
the accused on line, causing prejudice to them in such a way that such alteration curtails
the rights of the accused that it violates the fundamentals of natural justice and along
with which the court also has to make sure that such alteration causes no prejudice in
mind in case it has the potential to affect the said trial.

For this, the Supreme Court while referring to another case[iii] recently observed the
‘Test of Prejudice to the Accused’ put down an obligation over the trial courts to maintain
that there was no prejudice caused to the accused resulting of such alteration to the
charges, keeping in mind the safeguards that are present in Section 216. The Court in
this case[iv] laid down that the Magistrate may only frame such charges solely on the
basis of the materials produced before him, and such charges may be added or altered
in cases when subsequent evidence is produced before them, which of course has to be
done under the procedure laid in the Code and the Evidence Act and such material
evidence should be adequate and can be on the basis of FIR along with the material
evidence, or could be other accompanying documents. The Court in this case focused on
the purpose of the Section 216, and proclaims that in cases if the ‘Test’ is not adhered to,
it will defeat the purpose of the Section, which is mainly to keep the interests and rights
of the accused into consideration, or else in case such maintenance of rights is not
possible, then the Court may either direct a new trial or adjourn the trial for such period
if necessary under the part 4 of the Section.

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Similar test to check prejudice was used by the Court in the case of Kantilal Chandulal
Mehta[v], where the court says that the alteration can be done at any stage but before
the pronouncing of the judgment by the court as the accused must not face a charge for
a new offence or must not be prejudiced either by keeping him in the dark about that
charge or in not giving a full opportunity of meeting it & putting forward any defense
open to him, on the charge finally preferred against him. Similar defence to protect the
rights of the accused is given under Section 216(2), where the Court is under obligation
to read and explain whatever charge is put forth and the trial shall continue, as such that
such amendment to the charge was never made, in a way that the said altered/added
charge was originally there, as per the part 3 of the aforementioned Section.

Conclusion
Therefore, it may be said that the Court has the jurisdiction to add charges, even in such
cases where the Court has not formed or created charges and similarly, the Court has
the authority to alter the said charge. The already existing charges may be altered only
when there is enough evidence to back such alteration up. Further, according to the
sustaining rules and procedures laid down by the code, and various observations by the
Court, it is a valid precedent that if a person has been charged, the court cannot drop
it[vi], in a sense that he either has to be convicted or acquitted. All this has an important
bearing on the administration of justice[vii].

Alteration of charges is important for the administration of justice to keep in check that
there is no failure from the side of the executive during investigation, which could be
caused due to multiple reasons such as negligence, corruption or even there a few cases
where the police overlook minute details. In such cases, it is the duty of the magistrate to
monitor such cases responsibly and form charges keeping in consideration the law of
the land along with the said evidence procured and alter or edit charges that are created
wrongly or in a way that was not allowed or required. The safeguards are present in
Section 216, to prevent any misuse of power at any stage by the judiciary, as the judge is
obligated under the principles of natural justice to explain every accusation and charge
in their order or judgments and is also fair from the perspective of the accused as they
also get to have a fair trial.

[i] Sanatan Mondal v. State, 1988 CriLJ 238(Cal)

[ii] Harihar Chandulal Mehta v. State of WB, AIR 1954 SC 266

[iii] Bhimanna vs State Of Karnataka, (2012) 9 SCC 650

[iv] Anant Prakash Sinha v. State of Haryana, 2016 SCC OnLine SC 220

[v] Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166

[vi] State of Maharashtra v. B.K. Subbarao, 1993 Cri LJ 368 (Del)

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[vii] Prakash Chander v. State (Delhi), 1995 Cri LJ 368 (Del)

About the Author: Akash is a 2016-21 Batch B.A.LL.B student at Jindal Global Law School.

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