Source: Kerala High Court

Why in News?

Recently the Kerala High Court held that the power under Section 216 of Code of Criminal Procedure, 1973 (CrPC) to alter the charge exists only with the court and cannot be based upon an application by any of the parties.

What was the Background of State of Kerala v. Azeez Case?

• In 2006 the accused promised to two ladies to provide a cleaning job in Dubai.
• After collecting money, they were taken to Dubai.
• When they reached Dubai, they were confined in an apartment, and they consumed intoxicating substances. After that they were repeatedly raped.
• They were also compelled to have sexual intercourse with several strangers.
• However, they managed to escape and came back to India with the help of Indian Embassy.
• They lodged First Information Report (FIR).
• After the completion of investigation, a final report was submitted arraying the accused committed the offences under Sections 420, 376, and 342 read with section 120B of the Indian Penal Code, 1860 (IPC).
• The case was committed to the Sessions Court and is pending in Additional Sessions Court, Ernakulam (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children).
• When the trial commenced, the prosecutor requested to incorporate Section 370 of IPC also as an additional offence to be charged against the accused.
• The Session Judge held that this provision was added by the Criminal Law Amendment Act, 2013 and the allegations was made in 2006, thus, the offence under Section 370 IPC cannot have any application.
• After that an application was filed before the High Court under Section 482 of CrPC to alter the charge under Section 216 CrPC.

What were the Court’s Observations?

• The High Court observed that prior to 2013, Section 370 IPC was related with the importation, exportation, removal, buying, selling or disposing of and even the acceptance, reception or detention of a person against his will as a slave, as an offence punishable with imprisonment for seven years.
• However, in 2013 Section 370 IPC replaced with the provision for trafficking a person.
• Notwithstanding the above substitution, the earlier provision will apply for offences committed until the coming into force of the Amendment Act of 2013.
• The High Court held that the request for the addition of the charge under Section 370 IPC, as it stood prior to 2013, cannot be made at the prosecution's instance.
• The High Court denied interfering with the order of the trial court due to the non-maintainability of an application by the prosecution to add or alter the charge.
• The Kerala High Court held the trial court will be at liberty to independently consider the alteration or addition of charge under any provision of law if it is so satisfied.

What is Alteration or Addition of Charges?

• About:
  • A charge may be altered or added by the court at any stage before the judgment is pronounced.
• Section 216 of CrPC:
  • Section 216 of CrPC deals with ‘court may alter charge’. This provision explains that courts shall have the power to alter or add to charge at any time before the judgment is pronounced.
  • When the court finds that there is sufficient evidence to prove any offence which was not charged by the court earlier, the charge may be altered during the trial.
  • If an alteration or addition to a charge is likely prejudiced to the accused, the court may proceed with the original charge.
• Purpose:
  • The main purpose of this provision is to serve the interests of justice.
• Section 217 of CrPC:
  • Section 217 of CrPC deals with ‘recalling of witness when charge is altered’.
  • The court can recall the witness when the charge is altered or added by the court after the commencement of the trial.
• Addition or Alteration of Charge under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):
  • Section 239 of BNSS covers addition or alteration of charge.
  • Section 240 of BNSS covers recall of witnesses when charge altered.

Which is the Landmark Judgment Cited in this Case?

• P. Kartikalakshmi v. Sri Ganesh and Another (2017):
• In this case the Supreme Court observed 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.
• 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.

What is the Legal Provision involved in this Case?

• Section 216 of CrPC: 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 has 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.