Unless the accused convinces the magistrate that there has been a travesty of
justice by not framing the charge under a specific provision, and some prejudice
has been caused to the accused, an accused can be punished for an offence that
is less severe or minor than the one for which he has been charged.
must evaluate the fact, i.e., whether an objection could have been submitted at
an earlier time of the proceedings or not, in evaluating whether any error,
omission, or irregularity in formulating the charges has resulted in a failure
of justice. When deciding on a specific issue, such as prejudice, the magistrate
must keep in mind that every accused person has a fundamental right to a fair
and proper trial. In this research paper we will evaluating the power of courts
to alter and add charges and the legal position of the provisions pertaining to
this subject under the code of criminal procedure.
Framing of Charge: Provision, Procedure and Alteration of Charges
In criminal law, one of the most important aspects of a fair trial is providing
full information to the accused about the charges levelled against him. The
purpose of mounting a charge is to provide the accused clear, distinct, and
precise notice of the nature of the accusation he or she will face during the
course of a trial. The goal of the charge is to provide a warning notice to the
accused, and the accused is summoned to appear in court in a clear, distinct, or
Legal Provisions offered by CrPC
Section 213 discusses when the method of committing the crime must be
revealed. Section 214 refers to a rule for interpreting the charge's words,
which states that words used to describe an offence in a charge shall be
interpreted in the manner assigned to them by the legislation under which the
offence is penalised.
Procedure of Trail
In criminal proceedings, the most important need for a fair trial is an accurate
description of the charges. We can find out what a charge should contain by
looking at Sections 211 to 214 of the CrPC; Section 218 of the CrPC says that
each different offence should have its own charge; and finally, Section 219 of
the CrPC says that each charge should be strained distinctly, so that the first
two rules are not nullified by a plethora of unrelated charges.
"framing of charge
" refers to a written sketch by a judge or magistrate in a
specific prescribed form of charge sheet addressing a specific accusation that
appears prima facie, in the evidence gathered during the inquiry, against the defendant,stating the details of the crime for which he is charged there.
charge sheet contains the substance of the specific complaint as to the date,
time, and place of the alleged crime, the person or things against whom the
crime is allegedly committed, the circumstances of the crime, the law and
sections allegedly violated, and is read over and explained to the accused in
order to make him aware of the full particulars of the allegation against him so
that he can properly defend himself. The Judge or Magistrate is unsure whether
to formulate the charge based solely on the police charge sheet.
Amendment/Alteration of charge
Any charge can be changed or added to by the Court at any moment before
judgement is rendered. Every such change or addition must be read to the accused
and explained. If the modification or addition to a charge is such that
proceeding with the trial immediately would not, in the Court's opinion,
prejudice the accused in the defence or the prosecutor during the course of the
case, the Court may, in its discretion, proceed with the trial as if the
improved or added charge had been the original charge after the modification or
addition has been made.
The case may not be prosecuted if the offence indicated
in the revised or added charge is one for which prior penalty is required.
Unless prior consent has been acquired for a prosecution based on the same
evidences as those used to establish the revised or added charge, with until
such permission is secured.
When a charge is altered or added to by the Court after the start of a trial,
the prosecutor and the accused are both allowed to:
(a) Re-summon and examine
any witness who may have been examined with reference to such alteration or
addition, unless the Court, for reasons to be recorded in writing, considers
that the prosecutor or the accused, as the case may be, desires to recall or
re-examine such witness for the purpose of the trial.
- To summon any further witnesses the Court deems relevant.
- If a charge is changed, the accused has the right to recall any witness
who the prosecution or the accused wishes to recall, and the Court is
required to do so.
Following a charge change or addition, the prosecution's and accused's interests must be protected by allowing them to re-examine or
cross-examine previously examined witnesses, as appropriate, and by allowing
them to call additional witnesses. And the Court has the authority to deny a
prosecutor's or an accused's motion to recall witnesses based on three factors:
vexation, delay, or defeating the interests of justice.
When a charge containing more than one head is framed against the same person,
and one or more of them is convicted, the complainant, or the officer leading
the prosecution, may, with the Court's consent, remove the lasting charge or
charges, or the Court may, on its own accord, stay the review into, or trial of,
such charge or charges, and such removal shall have the effect of a discharge on
When the accused is convicted of one of multiple offences before
the other charges are tried, this section is suitable. The charges must be for
separate offences, and the provision will not apply if the charges are brought
under Sections 220(3), 220(4), or 221.
Under the code of criminal procedure, how does the court modify the charge? If
the court finds that there is sufficient evidence on record to prove the
occurrence of any offence not charged by the court, the charge may be changed
during the trial.
Under section 216 of the Code of Criminal Procedure, the court has the authority
to change or add to the charge at any moment until the verdict is rendered.
The term "at any time before judgement is announced" suggests that the authority
is broad. This power should only be exercised in suitable circumstances, and the
court should ensure that its order does not harm the accused. The ultimate
purpose of this power should be to serve the interests of justice. Sections 228
and 240 of the Code, respectively, deal with the formulation of the charge
during a trial before a Court of Sessions and the trial of Warrant -cases by
Magistrates. Whenever such a change or addition is made, it must be read out and
the accused must be told.
The legal position is well established that the Trial Court is not required to
examine and assess the materials placed on record by the prosecution in detail
at the stage of charge framing, nor is it required to consider the sufficiency
of the materials to establish the offence alleged against the accused persons.
The Court is only required to review the documents at the charge stage in order
to be satisfied that a prima facie case of commission of the claimed offence has
been made out against the accused individual.
Tulsabai v. the State of M.P.:
The Court does not need to conduct an
extensive investigation when formulating the charge. Even if prima facie
materials are discovered, the framing charge order cannot interfere.
In Thakur Shah v. Emperor : The Privy Council spoke on alteration or
addition of charges as follows:
"The alteration or addition is always, of course, subject to the limitation 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."
In Jasvinder Saini and others v. State (Government of NCT of Delhi) ;
Supreme court of India examined the scope of Section 216 CrPC and held as
"Once the court decides to alter or add any charge. Section 217 of the Code
deals with the recall of witnesses when the charge is altered or added by the
court after the commencement of the trial."
However, Section 216 does not specify the conditions in which such an addition
or change may be made. Nonetheless, it is trite that the question of any such
addition or alteration would generally arise either because the court finds the
charge already framed to be defective for any reason or because such addition is
deemed necessary after the trial has begun in light of the evidence that may be
presented to the court.
In Hasanbhai Valibhai Qureshi v. State of Gujarat:
The supreme court ruled
that whenever an application for a charge change or addition is made under
section 216 of the code, the court should decide on the basis of the case's
broad probabilities, based on the total effect of the evidence and documents
produced, and that any charge change or addition is necessary.
He has done nothing other than bring to the attention of the court the factual
situation of the information obtained by police during the investigation into
the petitioners, as provided by Section 216 of the Code. The court has the
authority to evaluate the evidence and issue an order adding or altering the
accusation, provided that sufficient time is allowed to either the accused or
the prosecution to prove the charge against them.
Under the Code of Criminal Procedure, the Sessions Judge had no authority to
dismiss any charges for which the accused had been committed for trial. In
circumstances where a person is committed for trial without a charge or with a
defective or erroneous charge, he can draught a charge, add to or otherwise
amend the charge in the exercise of his authority under s. 226 of the Code.
Quashing of charge State of Maharashtra v. Ishwar Piraji Kalpatri and
If a prima facie case is established on the basis of allegations, the
High Court has no power to quash the proceedings at this level.
It is also well established that when the accused files a petition under Section
482 Cr.P.C. seeking the quashing of a charge framed against them, the Court
should not interfere with the order unless there are compelling reasons to
believe that the charge framed against the accused should be quashed in the
interest of justice and to avoid abuse of the Court's process.
Only in severe circumstances and on rare instances can such an order be issued.
It is important to remember that once the Trial Court has established a charge
against an accused person, the trial must proceed without undue interference
from a higher court, and the prosecution's whole evidence should be placed on
The State Of Delhi vs Gyan Devi And Ors;
If the prosecutor's proposed
evidence to prove the accused's guilt, even if fully accepted before being
challenged by cross-examination or rebutted by defence evidence if any, cannot
show that the accused committed the particular offence, the charge can be
Amit Kapoor vs Ramesh Chander & Anr:
The Court may be justified in quashing
the charge if the charges made and as they appeared from the record and
documents affixed thereto to largely give rise to and constitute no'element of
criminality' and do not fulfil the essential ingredients of a criminal crime.
State vs 1. Veena Jain W/O Subhash Jain
The Delhi High Court has ruled that lower courts have "comprehensive" power to
change or add charges in a criminal case at any point of the proceedings before
a judgement is issued. "The court has adequate discretion to amend or alter a
charge only if it gives the accused complete opportunity to put out his
defence," stated a bench of justices Kailash Gambhir and Indermeet Kaur.
"This section (216) invests complete jurisdiction in the court to repair flaws
in the framing or non-framing of a charge, whether detected at the opening stage
of the trial or at any subsequent step prior to judgement," it stated, referring
to a provision of the Code of Criminal Procedure.
"If any omission in the charge
made at the start of the trial is discovered at any point before the judgement
is given, that omission can be repaired under this section and an appropriate
charge may be framed," the bench stated. The remarks were made in a decision on a
pair of appeals filed against convictions in a case under sections 304B (dowry
death) and 498A (cruelty to a woman) of the Indian Penal Code.
Yash Jain, his
parents Veena and Subhash Jain, and his brother-in-law Prashant Jain were
accused of murdering his 28-year-old wife Shalu for dowry on January 23, 1998,
just two-and-a-half years after their marriage. The lower court had sentenced
Yash to life in prison and the other defendants to various prison terms.
In order to conclude we can say that Sec. 216 of the CrPC gives all Courts,
including specific Courts, the authority to change or add any charge framed
before at any moment before the judgement is rendered. When some materials are
brought before the court that have a legitimate nexus with the charges that are
sought to be added or modified, the courts are entrusted by statute to exercise
the power of addition of charge or modification of charge.
Merely because the
charges are changed after the trial has concluded will no longer lead to the
conclusion that it has resulted in prejudice to the accused person and is
contrary to natural justice, because sufficient safeguards have been
incorporated in Sec. 216 CrPC, which has since been brushed up through judgment
or order of the Supreme Court.
- The Code of Criminal Procedure
Written By: Shanuja Thakur
- 1993 Cri LJ 368(M.P.)
- AIR 1943 PC 192
- (2013) 7 SCC 256
- AIR 2004 SC 2078
- 1996 Cri LJ 1127 SC
- AIR 2000 SC
- AIR 2012 SC
- State vs 1. Veena Jain W/O Subhash Jain