Exclusive And Wide-Ranging Powers Provided To The Trial Courts Under Section 216
of Cr. P. C To Add Or Alter Charges At Any Time, Even After Reserving Judgment;
Whether the Charge can be altered under Section 216 of the Cr. P. C. after
commencement of trial and recording of evidence of several witnesses?
To consider the issue whether the Court would be well within its jurisdiction to
alter the charge at any stage of the proceedings, it is germane to notice source
of power for such alteration.
Section 216 of the Code of Criminal Procedure, 1973 reads as follows:
216. Court may alter charge:
- Any Court may alter or add to any charge at any time before judgment is
- Every such alteration or addition shall be read and explained to the
- 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
- 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.
- 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 founded.
The legislative intention is evidently to invest the Court with all
comprehensive power for remedy the defect in a charge whether they arose while
framing the charge or due to non-framing of charge; whether the defects were
discovered at the inception of trial or at any subsequent stage of it. An
erroneous and improper charge may be corrected under Section 216 Cr. P. by
re-framing it properly or by adding or altering it for an offence provable by
This power to add or alter a charge is comprehensive enough for
remedying defects, whether they arise out of the framing of a charge or
non-framing of charge and whether they are discovered at the inception of the
trial or at subsequent stage of the trial but prior to the pronouncement of the
Judgment. Court's power to alter or add any charge is unrestrained provided such
addition and/or alteration is made before the Judgment is pronounced. It is
discretionary power but the discretion should be exercised judicially and not
No Detailed Order Necessary For Altering Charge
It is now settled position that when the Court is framing a charge, there is no
necessity to pass a speaking order showing the reason/s for framing of charge.
Framing of charge by itself indicates that the Magistrate or the Sessions Judge
has applied the mind and considered the relevant aspects and decided that prima
facie there is a case to be proceeded with on the materials furnished by the
prosecution and, therefore, charge is framed.
If that be so, it cannot be said
that when the charge is altered, the alteration of the charge is illegal for the
reason that there is no speaking order justifying the reason for the alteration.
Sub-section (1) of Section 216 Cr. P. C enables any Court to alter, add to any
charge at any time before the Judgment is pronounced.
Section 216 (1) permits any Court to alter or add to any charge at any time
before the judgment is pronounced. Other subsections quoted (supra) deal with
the manner in which such alteration of charge has to be made.
This power of alteration of the charge, as found in the statute, can be
exercised by any Court, before pronouncement of the judgment, which would mean
after the matter is reserved for its judgment the charge can be altered. The
power of such alteration of charge is also considered by the Supreme Court in
the case of ["Anant Prakash Sinha Vs State of Haryana & Anr.", (2016) 6 SCC
105], wherein, the Apex Court held that the charge can be altered at any time
during the proceedings, which would mean even after the case is reserved for its
Judgment. But, what has to be seen is, whether there is material and what is the
prejudice that would be caused to the accused by such act.
The Supreme Court in
the said Judgment held as follows:
18. From the aforesaid, it is graphic that the 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
It is not necessary to advert to each and every circumstance.
Suffice it to say, 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 Cr. P. C.
19. In addition to what we have stated hereinabove, another aspect also has to
be kept in mind. 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 Cr. P. C. 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 Supreme Court, in a later Judgment, following Anant Prakash Sinha's case has
in ["Dr. Nallapareddy Sridhar Reddy Vs State of Andhara Pradesh & Ors.", (2020)
12 SCC 467] held as follows:
6. Section 216 appears in Chapter XVII Cr. P. C. Under the provisions of
Section 216, the court is authorised to alter or add to the charge at any time
before the judgment is pronounced. Whenever such an alteration or addition is
made, it is to be read out and explained to the accused.
The phrase add to any
charge in sub-section (1) includes addition of a new charge. The provision
enables the alteration or addition of a charge based on materials brought on
record during the course of trial. Section 216 provides that the addition or
alteration has to be done at any time before judgment is pronounced
Sub-section (3) provides that if the alteration or addition to a charge does not
cause prejudice to the accused in his defence, or the prosecutor in the conduct
of the case, the court may proceed with the trial as if the additional or
alternative charge is the original charge. Sub-section (4) contemplates a
situation where the addition or alteration of charge will prejudice the accused
and empowers the court to either direct a new trial or adjourn the trial for
such period as may be necessary to mitigate the prejudice likely to be caused to
the accused. Section 217 Cr. P. C deals with recalling of witnesses when the
charge is altered or added by the court after commencement of the trial.
A Two-Judge Bench of Supreme Court in [P. Kartikalakshmi Vs. Sri Ganesh & Anr,
(2017) 3 SCC 347: (2017) 2 SCC (Cri) 84], dealt with a case where during the
course of a trial for an offence under Section 376 Indian Panel Code, 1860, an
application under Section 216 was filed to frame an additional charge for an
offence under Section 417 Indian Panel Code, 1860. F.M. Ibrahim Kalifulla, J.
while dealing with the power of the Court to alter or add any charge, held: (SCC
P. 350, Para 6)
6. … Section 216 Cr. P. C empowers the court to alter or add any charge at any
time before the judgment is pronounced. It is now well settled that the power
vested in the court is exclusive to the court and there is no right in any party
to seek for such addition or alteration by filing any application as a matter of
It may be that if there was an omission in the framing of the charge and if it
comes to the knowledge of the court trying the offence, the power is always
vested in the court, as provided under Section 216 Cr. P.C to either alter or
add the charge and that such power is available with the court at any time
before the judgment is pronounced. It is an enabling provision for the court to
exercise its power under certain contingencies which comes to its notice or
brought to its notice.
In such a situation, if it comes to the knowledge of the court that a necessity
has arisen for the charge to be altered or added, it may do so on its own and no
order need to be passed for that purpose. After such alteration or addition when
the final decision is rendered, it will be open for the parties to work out
their remedies in accordance with law.
In [CBI Vs. Karimullah Osan Khan, (2014) 11 SCC 538: (2014) 3 SCC (Cri) 437],
Supreme Court dealt with a case where an application was filed under Section 216
Cr. P. C during the course of trial for addition of charges against the
appellant under various provisions of Indian Panel Code, 1860, the Explosives
Act, 1884 and the Terrorist & Disruptive Activities (Prevention) Act, 1987. K.
S. P. Radhakrishnan, J. speaking for the Court, held thus: (SCC p. 546, Paras
17. Section 216 Cr. P. C 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 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.
18. Section 216 Cr. P. C 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 and sub-sections (2) to (5) prescribe the
procedure which has to be followed after that addition or alteration.
Needless to say, the courts can exercise the power of addition or modification
of charges under Section 216 Cr. P. C, only when there exists some material
before the court, which has some connection or link with the charges sought to
be amended, added or modified. In other words, 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.
In [Jasvinder Saini & Ors. Vs. State (NCT of Delhi), (2013) 7 SCC 256: (2013) 3
SCC (Cri) 295], Supreme Court dealt with the question whether the trial Court
was justified in adding a charge under Section 302 Indian Panel Code, 1860
against the accused persons who were charged under Section 304-B Indian Panel
Code, 1860. T. S. Thakur, J. (as he then was) speaking for the Court, held thus
: (SCC PP. 260-61, Para 11)
11. A plain reading of the above would show that the Court's power to alter or
add any charge is unrestrained provided such addition and/or alteration is made
before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal
with the procedure to be followed 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 commencement of the trial. There
can, in the light of the above, be no doubt about the competence of the court to
add or alter a charge at any time before the judgment.
The circumstances in which such addition or alteration may be made are not,
however, stipulated in Section 216. It is all the same trite that the question
of any such addition or alternation would generally arise either because the
court finds the charge already framed to be defective for any reason or because
such addition is considered necessary after the commencement of the trial having
regard to the evidence that may come before the court.
From the above line of precedents, it is clear that Section 216 provides the
Court an exclusive and wide-ranging power to change or alter any charge. The use
of the words at any time before judgment is pronounced in sub-section (1)
empowers the Court to exercise its powers of altering or adding charges even
after the completion of evidence, arguments and reserving of the Judgment.
alteration or addition of a charge may be done if in the opinion of the Court
there was an omission in the framing of charge or if upon prima facie
examination of the material brought on record, it leads the Court to form a
presumptive opinion as to the existence of the factual ingredients constituting
the alleged offence. The test to be adopted by the Court while deciding upon an
addition or alteration of a charge is that the material brought on record needs
to have a direct link or nexus with the ingredients of the alleged offence.
Addition of a charge merely commences the trial for the additional charges,
whereupon, based on the evidence, it is to be determined whether the accused may
be convicted for the additional charges.
The Court must exercise its powers
under Section 216 judiciously and ensure that no prejudice is caused to the
accused and that he is allowed to have a fair trial. The only constraint on the
Court's power is the prejudice likely to be caused to the accused by the
addition or alteration of charges. Subsection (4) accordingly prescribes the
approach to be adopted by the Courts where prejudice may be caused.
Multiple Judicial pronouncements have recognized the necessity of the Courts to
alter charges in the interest of Justice. Section 216 of the Code of Criminal
Procedure, 1973 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 of
Criminal Procedure, 1973. 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/her or by trying the accused for an offence with a greater
sentence than the one committed by him/her.
An accused must be tried for all
offences committed by him/her, 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 of Criminal Procedure, 1973is a
relevant provision that ensures that the victim of a crime is awarded Justice by
the Criminal Justice System.
Written By: Dinesh Singh Chauhan, Advocate
- J&K High Court of Judicature,
Email: [email protected]
, [email protected]