Crpc Project

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

GROUP-5

TOPIC: ALTERATION OF CHARGES

SUBMITTED TO DR. SHRUTI GOYAL ASSISTANT PROFESSOR OF LAW RGNUL

SUBMITTED BY CHINKI VERMA 15038 7th SEMESTER

ACKNOWLEDGEMENT Taking this opportunity, I want to expand my gratitude towards every person who has in one way or another helped me in completion of this project. I am most thankful and want to pay my sincere gratitude to my Professor Dr SHRUTI GOYAL, Assistant professor of law, RGNUL and for her important guidance and support. I also want to thank my family and friends without whose love and constant support I won’t have completed this project. . Thanking you Chinki Verma 15038 7th semester BA.LLB(hons) RGNUL

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INDEX 1. INTRODUCTION......................................................................................................…..3 2. WHAT ARE CHARGES?...............................………..……………………………..…3 a. SECTION 2(B) CR.P.C b. PURPOSE & OBJECT c. THE LEGAL PROVISION 3. ALTERATION OF CHARGE........................................................................…………4 a. NEED FOR EXPLAINING ALTERATION OR ADDITION b. REQUIREMENT OF SANCTION 4. “AT ANY TIME BEFORE JUDGEMENT IS PRONOUNCED”………………..…7 5. EXTEND OF PERMISSIBILITY OF ALTERATION OF CHARGE .........…….....9 6. TEST OF PREJUDICE TO THE ACCUSED………………………………………..9 a. TEST OF PREJUDICE b. COURTS HAS JURISDICTION TO ADD/ ALTER CHARGE 7. PROCEDURE AFTER ALTERATION OR ADDITION OF CHARGE………….11 8. IS CRIMINAL REVISION CASE AGAINST SEC.216 ORDER MAINTAINABLE………………………………………………………………….….11 9. RECALL OF WITNESSES WHEN CHARGE ALTERED………………………..12 10. CONCLUSION...............................................................................................................13 11. BIBLIOGRAPHY.....................................................................................................….14 12. ROUGH DRAFT

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INTRODUCTION One essential prerequisite of a fair trial in criminal law is to give exact information to the accused with regards to the allegation against him. This is fundamentally vital so as to enable the accused make preparations to defend himself. In all preliminaries under the Criminal Procedure Code the accused is informed of the allegation in the first place itself. If there should arise an occurrence of genuine offenses the Code necessitates that the allegations are to be figured and reduced to writing with great precision & clarity. This "charge" is then to be perused and disclosed to the accused person. The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial 1. Either it is a warrant case or a summons case, the point is that a prima facie case must be made out before a charge can be framed. The Hon’ble Supreme Court, in Mohan Singh v. State of Bihar2, has examined the law relating to charge while highlighting the purpose of framing a charge against the accused in criminal cases.

WHAT ARE CHARGES? Charge is a first notice to accused of his offence, it should convey to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet3. Charge is an accusation made against a person in respect of an offence alleged to have been committed by him4. The basic requirement is that the charge must be so framed as to give the accused person a fairly reasonable idea of the case which he has to face and the validity of the charge must be determined by the application of the test viz, has the accused a reasonable sufficient notice of the matter with which he is charged5. Section 2(b) of the Code of Criminal Procedure (in short crpc) defines a charge as V.C. SHUKLA V. STATE THROUGH C.B.I.,1980 SUPPLEMENTARY SCC 92 AT PAGE 150 AND PARAGRAPH 110 OF THE REPORT 2 CRIMINAL APPEAL NO.663 OF 2010 3 MANNA LAL V. STATE[1967 CRI LJ 1272] 4 BIRICHH BHUIAN V. STATE OF BIHAR [AIR 1963 SC 1120] 5 CHITTRANJANDAS V. STATE OF W.B [1964(3) SCR 237] 1

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“ ‘charge’ including any head of charge, when the charge contains more than one”6. However the Code of Criminal Procedure does not define what a charge is. In law a charge may be define as a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him. PURPOSE AND OBJECT The purpose of a charge is to tell the accused, as precisely and concisely as possible, about the matter with which he is charged and the object of a charge is to warn the accused of the case which he has to answer. The forms in which the charges may be framed are set forth in Second Schedule of the Code of Criminal Procedure. At the stage of Framing of charge the court is not expected to screen evidence or to apply standards as to whether prosecution will be able to prove the case against accused7. THE LEGAL PROVISIONS The provisions regarding charge are contained in Sections 211 to 224 and 464 of the crpc. Sections 211 to 214 of crpc deals with what a charge should contain. Section 211 & Section 212 specifies about Contents of Charge and mentioning of particulars as to time and place of the alleged offence in the charge

ALTERATION OF CHARGE section 216, crpc deals with alteration of charges. The section reads as follows: 216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) 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

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SECTION 2(B) OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.) C.P MALIK V. STATE [1999 CRI LJ 45259DELHI]

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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. (4) 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. (5) 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 founded8. 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. The court may alter or add to the charge at any time before judgement is pronounced. It may be done even at the appellate stage before the pronouncement of the judgement of appeal. But it must exercise a sound and wise discretion in so doing. If it wishes to strike out any of the charges it should do so concluding the trial, and should give the accused an opportunity of making such defence as he thinks fit; otherwise the trial is vitiated9. Even if there is an omission to frame a proper charge at the commencement of the trial, if that omission is discovered subsequently, it can be remedied by framing appropriate charge at any time before the judgement is pronounced Section 216 of Cr P.C. enables the counts to alter the charges10. Commenting on the provisions contained in Section 216 of the Code the Supreme Court in Kantilal v. State11 observed as follows:—

SECTION 216 OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.) AVAILABLE AT “http://shodhganga.inflibnet.ac.in/bitstream/10603/12751/13/13_chapter %204%20%20part%202.pdf” 8 9

10

RATANLAL AND DHIRAJLAL ,“ THE CODE OF CRIMINAL PROCEDURE”, LEXIS NEXIS , 22ND EDITION, 2018 REPRINT, page 1153. 11

KANTILAL [AIR 1970 SC 359, 362-363: (1970) 3 SCC 166].

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“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.”12 NEED FOR EXPLAINING ALTERATION OR ADDITION 216. Court may alter charge. (2) Every such alteration or addition shall be read and explained to the accused13. It is the basic fundamental of a fair trial that the accused should be well informed about all the charged against him so as to enable the accused to defend himself effectively against all the charges against him. Following this principle like the original charges every alteration or addition shall be read and explained to the accused. To quote Lord Porter from the privy council decision in Thakur Shah v. Emperor14 the alteration or addition is "always, of course, subject to the limitations 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"15. 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. 12

ibid

13

SECTION 216 (2) OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.) [AIR 1943 PC 192]

14 15

ibid

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REQUIREMENT OF SANCTION 216. Court may alter charge. (5) 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 founded16.

Sub section (5) of S. 216 provides that if the offence stated in the altered charge for the prosecution of which previous sanction by some authority if required, the case shall not be proceeded with until such sanction is obtained 17. But if sanction has already been obtained already for a prosecution on the same facts as those on which the altered or added charge if found, though for some other, the proceeding shall not be stayed and the trial while proceed as of no charges has been added18.

“AT ANY TIME BEFORE JUDGMENT IS PRONOUNCED”

216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is 16

SECTION 216 (5) OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.)

17

AVAILABLE AT “http://www.shareyouressays.com/knowledge/section-216-of-code-of-criminal-procedure-1973cr-p-c-explained/115040” 18 RATANLAL AND DHIRAJLAL ,“ THE CODE OF CRIMINAL PROCEDURE”, LEXIS NEXIS , 22ND EDITION, 2018 REPRINT, page 1155.

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very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused. The court may alter or add to the charge at any time before judgement is pronounced. It may be done at the appellate stage before the pronouncement of the judgement of appeal. But it must exercise a sound and wise discretion in so doing. If ut wishes to strike out any of the charges, it should do so before concluding the trial and should give the accused an opportunity of making such defence as he thinks fit, otherwise, the trial is vitiated19. The application of S. 216(1) cannot be limited to altering or amending a charge in respect of an offence disclosed by the evidence during trial. Even if that is an omission is discovered subsequently , it can be remedied by farming appropriate charge at any time before the judgement is pronounced20. In rajbir v. state of haryana21 , the supreme court had directed all trial courts to ordinarily add S. 302 to the charge u/s 304B. A trial judge , acting on the direction of supreme court given in above case , framed additional charge u/c 302 in a dowry death case, without advertising to the evidence adduced in the case. In jasvinder saini v. state (government of NCT of Delhi22), it was held by supreme court that such framing of additional charge was unjustified and remitted the matter to trail court to reconsider whether the charge u/s 302 should be framed in the light of the evidence in the case.

EXTEND OF PERMISSIBILITY OF ALTERATION OF CHARGE The object of section 216 Cr.P.C is to ensure a fair trail and the court is to see as to whether alteration or addition to any charge at any time before the judgement is pronounced is called for or not and if it is called for, such alteration or addition to any charge, must be on the basis of some evidence on record. It made clear that the words Chettu kalwar v. empror [(1922) 49 Cal 555] Enumula subba rao v. state of AP [1979 CrLj 258] 21 [AIR 2011 SC 568] 22 [AIR 2014 SC 841] 19 20

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“add to” means addition of a new charge and not addition of few words or corrections and that an erroneous or improper charge may be corrected by re framing it properly or by adding to it or altering it for an offence provable by evidence taken by the trial court. In Rocky Banedick V. State of Sikkim23, a prima facie case was made out by the prosecution for altering or adding the charges and the basic ingredients were present in the prosecution case and as such , thus it was held that the accused petitioners were not prejudiced or handicapped in their defence. Non-permissibility of alteration of charges In Ganesh Pandhan v. State Of Orissa24, it was geld that in minor offence if the alteration of charge converts the prosecution into acquittal or in major offence into convection, such alteration of charge without addition is not permissible.

TEST OF PREJUDICE TO THE ACCUSED

Supreme Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana 25, has observed that while adding or altering a charge under Section 216 CrPC, the trial court has to keep in view, the test of prejudice to the accused. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh said that 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. TEST OF PREJUDICE Referring to Bhimanna v. State of Karnataka26, the Apex Court bench said that while adding or altering a charge under Section 216 CrPC, the trial court must keep in view the test of prejudice to accused.”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 in23

[2003 Cri LJ 3309 (sikkim)] [1988 Cri Lj 500(Ori)] 25 CRIMINAL APPEAL NO.131 of 2016 (@ Special Leave Petition (Criminal) No. 837 of 2016) 26 (2012) 9 SCC 650 24

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built safeguards in Section 216 CrPC. 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 Bench said. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s) COURT HAS JURISDICTION TO ADD/ALTER CHARGE. The Court however observed that if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge and 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 is not the purport of Section 216 CrPC, the Bench said holding that the trial court must keep both the principles in view27.

PROCEDURE AFTER ALTERATION OR ADDITION OF CHARGES 216. Court may alter charge. (3) 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 charge28.

AVAILABLE AT “http://shodhganga.inflibnet.ac.in/bitstream/10603/12751/13/13_chapter %204%20%20part%202.pdf” 28 SECTION 216(3) OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.) 27

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If, after the charge has been amended or added, the court thinks that it will not prejudice the accused in his defence or the prosecutor in the conduct of the case, it may proceed with the trial of the case as if the added charge was the original charge. (4) 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 necessary29. If, after a charge has been altered or amended , the court is of opinion that the accused or the prosecutor may suffer by proceeding with the trial, it may either direct a new trial or adjournment the trial for a period as may be necessary for the accused to prepare his defence and the prosecutor to manage for his evidence.

IS CRIMINAL REVISION CASE AGAINST S.216 ORDER MAINTAINABLE ? The legal position regarding it is that neither the prosecution nor the defacto complainant or any one interested in the criminal case is entitled to file an application under Section 216 of Cr.P.C., and it is only for the Trial Court to decide about framing of an additional charge or alter an existing charge upon arriving at a subjective satisfaction on the basis of existence of materials available on records30. It can also be culled out that as against an order passed by the Trial Court in an application under Section 216 of Cr.P.C., a criminal Revision case under Section 397 of Cr.P.C., is not maintainable as such an order did not finally determine the prosecution case and it is an interlocutory in nature. Thus, the Trial Court, in the present case, is right in dismissing he application, filed by the prosecution under section 216 of Cr.P.C., for inclusion of an additional charge under Section 302 of IPC against the respondents / accused.

29

SECTION 216 (4) OF CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.)

30

AVAILABLE AT “http://www.shareyouressays.com/knowledge/section-216-of-code-of-criminal-procedure-1973cr-p-c-explained/115040”

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RECALL OF WITNESSES WHEN CHARGE ALTERED

Section 217 deals with this.The section requires the Court to enquire from the prosecution or the accused, as to whether they would like to exercise their right to recall or re-summon the witnesses or have further witnesses examined when a charge is altered or added after the commencement of the trial. The provisions of this section are mandatory and the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined. The omission to comply with the provisions of this section is not curable under Section 464 of the Code31. But if the Court is of the opinion that the application under Section 217 has been made by the prosecution or the accused for delaying or defeating the ends of justice, it may refuse to recall or re-summon a witness32. In Moosa Abdul Rahiman V. State of Kerala 33, it was held that if the court considers that the prosecutor or the accused desires to recall or re-examine such witnesses for the purpose of vexation or delay or for defeating the ends of justice, he may refuse to re-summon the witnesses but for that he has to record his reasons so that the higher court may decide the validity of the order.

CONCLUSION

After the above discussion about the alteration or addition of charge in Cr.P.C and the process therein, we can conclude that charge are one of the essential prerequisite of a fair trial in criminal law. It provide exact information to the accused with regards to the allegation against him so as to enable him to defend himself efficiently against

31

BATUKLAL, “COMMENTARY ON THE CIDE OF CRIMINAL PROCEDURE, 1973” ORIENT PUBLISHING COMPANY, 5TH EDITION(VOLUME 1), 2012 REPRINT , PAGE 2817. 32 ibid 33 [1982 Cri Lj 2087 (Ker)]

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them. They is fundamentally vital so as to enable the accused make preparations to defend himself. Many a times there occurs a situation that there persists on defects in the formation of charge. These charges needs to be amended as trial of the accused wrong charges amounts of gross miscarriage of justice.thus to prevent it , Cr.P.C provides for the provision regarding alteration or addition of charges. Section 216 and 217 deals with it. 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 change34. To determine whether a alteration or addition could be allowed or not judiciary has evolved a “prejudice to accused test”. This test provides that the standard to text the permissibility of a alteration or addition in charge is the prejudice caused to the accused due to such alteration or addition.Supreme Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana 35, has observed that while adding or altering a charge under Section 216 Cr.P.C, the trial court has to keep in view, the test of prejudice to the accused. Section 216 (3) and (4) provides for the initiation of proceeding after the alteration or addition in charge. It provides for two different procedure for two different cases depending upon the nature of the case as to whether beginning with proceeding intermediately would result in prejudice to the party or not. Further section 217 provides for the provision of recalling of witness after the alteration or addition of the charges , if the case demands so.

BIBLIOGRAPHY

34

BATUKLAL, “COMMENTARY ON THE CIDE OF CRIMINAL PROCEDURE, 1973” ORIENT PUBLISHING COMPANY, 5TH EDITION(VOLUME 1), 2012 REPRINT , PAGE 2817. 35 CRIMINAL APPEAL NO.131 of 2016 (@ Special Leave Petition (Criminal) No. 837 of 2016)

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

DR. K.N. CHANDRASEKHARAN PILLAI, “R.V. KELKAR'S CRIMINAL PROCEDURE”, 6TH EDITION, 2014, REPRINTED 2018



RATANLAL

AND

DHIRAJLAL

,“

THE

CODE

OF

CRIMINAL

PROCEDURE”, LEXIS NEXIS , 22ND EDITION, 2018 REPRINT. 

CODE OF CRIMINAL PROCEDURE, 1973 (CR.P.C.)



BATUKLAL, “COMMENTARY ON THE CIDE OF CRIMINAL PROCEDURE, 1973” ORIENT PUBLISHING COMPANY, 5TH EDITION(VOLUME 1), 2012 REPRINT.

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