Law Web: Whether court can alter or add charges against accused when case is closed for judgment?

In Jasvinder Saini v State (Govt of NCT of Delhi) (2013) 7 SCC 256, this Court dealt with

the question whether the Trial Court was justified in adding a charge under

Section 302 of the IPC against the accused persons who were charged under

Section 304B of the IPC. Justice T S Thakur (as he then was) speaking for the

Court, held thus:

“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.”

(Emphasis supplied)

20 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. The

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. Sub-Section (4) accordingly prescribes the approach to be adopted by

the courts where prejudice may be caused.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1934 of 2019

Dr Nallapareddy Sridhar Reddy Vs The State of Andhra Pradesh

Dr Dhananjaya Y Chandrachud, J

Dated:January 21, 2020.

1 This appeal arises from the judgment of a Single Judge of the High Court

of Andhra Pradesh dated 6 March 2019. A revision petition1 filed by the fourth

respondent against an order of the Additional Junior Civil Judge, Sattenapalli was

allowed and directions were issued for the framing of charges against the

appellant under Sections 406 and 420 of the Indian Penal Code 18602.

2 On 10 March 2011, a First Information Report3 was lodged by the fourth

respondent, who is the father-in-law of the appellant, alleging that the appellant

and the members of his family had harassed his daughter with demands for

1 Criminal Revision Case no 2712 of 2017

2 “IPC”

3 “FIR”

money and transfer of land in their names. The FIR recites that the appellant and

the daughter of the fourth respondent got married in 2003. Allegedly, in 2006 the

appellant and his family refused to take the complainant’s daughter to the United

Kingdom where her husband was staying unless her Stridhana property was

transferred in their names.

3 On 30 June 2012, a charge-sheet was filed against the appellant and his

parents for offences under Section 498A of the IPC along with Sections 3 and 4

of the Dowry Prohibition Act 19614. The investigating officer, upon receipt of

additional information about the commission of other offences by the appellant,

obtained permission from the Trial Court for further investigation. Based on the

statements of various witnesses under Section 161 of the Code of Criminal

Procedure 19735 with respect to the appellant raising a demand of Rs 5,00,000/-

for securing a job for the complainant’s daughter as a doctor in the United

Kingdom, an additional charge-sheet was filed on 12 April 2013 in respect of the

alleged commission of offences under Sections 406 and 420 of the IPC. The Trial

Court framed charges against the appellant only for offences mentioned in the

original charge-sheet dated 30 June 2012 under Section 498A of the IPC along

with Sections 3 and 4 of the Dowry Prohibition Act. The trial commenced and

after the recording of evidence and conclusion of arguments, the case was

reserved for judgment on 13 February 2017.

4 On 13 February 2017, an application was filed by the Public Prosecutor

under Section 216 of CrPC for alteration of charge stating that even though an

4 “Dowry Prohibition Act”

5 “CrPC”

additional charge-sheet had been filed by the investigating officer on 12 April

2013 implicating the appellant for crimes under Sections 406 and 420, charges

were not framed by the trial judge under those provisions. On 21 February 2017,

the Trial Court allowed the application and charges under Sections 406 and 420

were framed against the appellant. The Trial Court observed that the court only

had the opportunity of going through the original charge-sheet dated 30 June

2012 and not the additional charge-sheet dated 12 April 2013 that was kept in a

separate bundle. Aggrieved by the order of the Trial Court, the appellant instituted

revisional proceedings before the High Court.

5 On 1 June 2017, a Single Judge of the High Court allowed the revision

petition6 and set aside the order of the Trial Court framing additional charges on

the ground of procedural irregularity but left it open to the Trial Court to frame, if

at all necessary, any additional charges after providing both the sides with an

opportunity of hearing and recalling witnesses.

6 The Trial Court after hearing arguments on behalf of both the sides and

perusing the material available on record concluded that the ingredients for

offences under Sections 406 and 420 IPC were not made out and by an order

dated 11 October 2017 rejected the application for framing additional charges.

The fourth respondent filed a revision petition before the High Court against the

above order of the Trial Court.

7 On 6 March 2019, a Single Judge of the High Court allowed the revision

petition7 and set aside the Trial Court’s order. The High Court held that the Trial

6 Criminal Revision Case no 661 of 2017

7 Criminal Revision Case no 2712 of 2017

Court while rejecting the application under Section 216 did not disclose the

reasons for concluding that the ingredients of Sections 406 and 420 were not

attracted and only touched upon the lapses of the prosecution in not seeking an

alteration of charges during the course of the trial. The High Court while directing

the framing of additional charges under Sections 406 and 420 of IPC evaluated

the witness statements brought on record during the course of investigation and

referred to the additional charge-sheet filed on 12 April 2013.

8 Aggrieved by the order dated 6 March 2019 of the High Court, the

appellant moved this Court under Article 136 of the Constitution.

9 Ms Anitha Shenoy, learned Senior Counsel appearing on behalf of the

appellant has urged the following submissions:

(a) An application for alteration of charge under Section 216 was

intentionally filed on the date of the pronouncement of judgment to

unnecessarily delay the proceedings;

(b) The FIR dated 10 March 2011, filed by the fourth respondent, has no

mention of any demand or payment of Rs 5,00,000/- to the appellant for

securing a job for the complainant’s daughter. The FIR only refers to

facts with respect to alleged offences under Section 498A of the IPC

and Section 4 of the Dowry Prohibition Act;

that a doctor’s job cannot be secured in the United Kingdom without

clearing an entrance test. Accordingly, the question of paying Rs

5,00,000/- to the appellant for securing a job does not arise;

(d) PW 6, who is a friend of the fourth respondent is an interested witness

as they have been friends for the past twenty-five years;

(e) PW 5, who is the brother-in-law of the fourth respondent, is an

interested witness and during the cross-examination he was unable to

mention the date, month and year on which the alleged amount was

paid to the fourth respondent for payment to the appellant. There exists

no documentary material to indicate that the fourth respondent

borrowed money from PW 5; and

(f) The ingredients of Sections 406 and 420 have not been fulfilled. At the

stage of framing of charge, the court is not expected to go deep into the

probative value of the material on record. The court only needs to

consider whether there is ground for presuming that the offence has

been committed (Onkar Nath Mishra v The State8). There exists a fine

distinction between cheating and a mere breach of contract. It depends

upon the intention of the accused at the time of inducement which may

be judged by his subsequent conduct. To hold a person guilty of

cheating, it is necessary to show existence of fraudulent or dishonest

intention at the time of making the promise. (Hridaya Ranjan Prasad

Verma v State of Bihar9).

10 On the other hand, Mr A T M Ranga Ramanujam, learned Senior Counsel,

appearing on behalf of the fourth respondent submitted thus:

(a) The fourth respondent did not intend to delay the pronouncement of the

decision. The additional charge sheet and the cognizance order had

been in place before the Trial Court since 2013. The additional charge-

8 (2008) 2 SCC 561

9 (2000) 4 SCC 168

sheet missed the attention of the Magistrate because it was kept in a

separate docket;

(b) The charge can be altered by the court at any time before the

pronouncement of the judgment based on the materials available or

subsequently brought on record during the course of the trial (Anant

Prakash Sinha v State of Haryana10). In the present case, the

investigating officer filed the additional charge-sheet only after he

received additional information during the course of investigation in

relation to offences under Sections 406 and 420 of the IPC. Though,

the appellant was initially charged in pursuance of the original chargesheet

dated 30 June 2012, subsequent evidence brought on record

does not restrict the court from altering the charge; and

a presumption regarding the existence of ingredients constituting the

offence found upon the material placed before it. It is not necessary for

the court to undertake an analysis of the credibility, veracity or

evidentiary value of the materials placed before it (Sajjan Kumar v

Central Bureau of Investigation11).

11 The rival submissions fall for our consideration.

12 In the present case, the investigating officer upon receipt of additional

information about the alleged commission of offences under Sections 406 and

420 by the appellant, obtained permission for further investigation. Statements of

witnesses recorded under Section 161 of CrPC indicated that the appellant had

raised a demand of Rs 5,00,000/- for securing a doctor’s job for the complainant’s

10 (2016) 6 SCC 105

11 (2010) 9 SCC 368

daughter in the United Kingdom. After investigation, an additional charge-sheet

was filed on 12 April 2013 against the appellant for offences under Sections 406

and 420 of the IPC. This is evident from the counter affidavit filed by the fourth

respondent before this Court which contains the docket order of the Additional

Junior Civil Judge, Sattenapalli. In an order dated 16 August 2013 it was stated:

“... Additional charge sheet filed by investigating officer

through learned APP. This case was taken on file u/s 498 -A

of IPC and Sec. 4 of D.P. Act against A.1 to A.3 on

28.09.2012. Perused the Addl. Charge Sheet and other

available material on record. Heard learned APP. It is a fit

case to take on file Section 406 and 420 of IPC also

against A.1. Call on 16.09.2013.” (Emphasis supplied)

The order dated 13 February 2017 stated thus:

“... In the case on hand, initially charge sheet was filed for the

offence u/s 498-A IPC, Sec. 3 & 4 of the Dowry Prohibition Act

and the cognizance was taken for those offences by my

predecessor. Later an additional charge sheet was filed by

the investigation officer in this case and my predecessor

was please to take cognizance of offences punishable u/s

406, 420 IPC also on 16.08.2013. But the fact of filing of

additional charge sheet was not brought to the notice of

this Court and the additional charge sheet was kept as a

separate bundle in the record. So, charges were framed

against the accused only for the offence punishable u/s

498-A IPC and Sec. 3, 4 of the Dowry Prohibition Act and

Sect. 406 and 420 of IPC were ignored. This fact came out

to the notice of this Court while this Court has gone through

the entire record after hearing arguments for disposal of the

case. On 13.02.2017 the learned Asst. Public Prosecutor has

also filed a petition u/s 216 of CrPC, with a prayer to add

Section 406, 420 of IPC and to frame charges for those

offences also...” (Emphasis supplied)

13 It is evident from the record that the earlier Additional Junior Civil Judge

perused the additional charge-sheet and took cognizance of offences under

Sections 406 and 420 of the IPC. However, at the time of framing charges, the

additional charge-sheet was not brought to the notice of the court and the framing

of charges against the appellant under Sections 406 and 420 was not

considered. Therefore, the appellant was charged only for offences under Section

498A of the IPC along with Sections 3 and 4 of the Dowry Prohibition Act. It was

when an application under Section 216 of CrPC was filed by the public

prosecutor on 13 February 2017 that it was brought to the notice of the Trial

Judge that charges under Sections 406 and 420 were not framed.

14 In order to adjudicate upon the dispute, it is necessary to refer to Section

216 of CrPC:

“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 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 founded.”

15 Section 216 appears in Chapter XVII of the CrPC. 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 persecutor 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 of the CrPC deals with recalling of witnesses when the charge is altered or

added by the court after commencement of the trial.

16 The decision of a two-judge Bench of this Court in P Kartikalakshmi v Sri

Ganesh12, dealt with a case where during the course of a trial for an offence

under Section 376 of the IPC, an application under Section 216 was filed to frame

an additional charge for an offence under Section 417 of the IPC. Justice F M

Ibrahim Kalifulla, while dealing with the power of the court to alter or add any

charge, held:

“6. ... Section 216 CrPC 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

12 (2017) 3 SCC 347

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 right. 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 CrPC 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.”

(Emphasis supplied)

17 In Anant Prakash Sinha v State of Haryana13, a two judge Bench of this

Court dealt with a situation where for commission of offences under Sections

498A and 323 of the IPC, an application was filed for framing an additional

charge under Section 406 of the IPC against the husband and the mother-in law.

After referring to various decisions of this Court that dealt with the power of the

court to alter a charge, Justice Dipak Misra (as the learned Chief Justice then

was), held:

“18. ... 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 of

judgment. 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

13 (2016) 6 SCC 105

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 CrPC.

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 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...” (Emphasis supplied)

18 In CBI v Karimullah Osan Khan14, this Court dealt with a case where an

application was filed under Section 216 of CrPC during the course of trial for

addition of charges against the appellant under various provisions of the IPC, the

Explosives Act 1884 and the Terrorist and Disruptive Activities (Prevention) Act

1987. Justice K S P Radhakrishnan, speaking for the Court, held thus:

“17. 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 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 CrPC 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 CrPC, 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.”

14 (2014) 11 SCC 538

(Emphasis supplied)

19 In Jasvinder Saini v State (Govt of NCT of Delhi) (2013) 7 SCC 256, this Court dealt with