Source: Supreme Court 

Why in News? 

A bench of Justice JB Pardiwala and Justice Manoj Misra held that under Section 216 of CrPC charges cannot be deleted. 

• The Supreme Court held this in the case of Directorate of Revenue Intelligence v. Raj Kumar Arora (2025). 

What was the Background of Directorate of Revenue Intelligence v. Raj Kumar Arora (2025) Case?   

• On 27th September, 2003, the Department of Revenue Intelligence Headquarters (DRI(HQ)) received information about illegal glass ampoules containing Buprenorphine stored at an office in New Delhi. 
• DRI officers conducted simultaneous searches at both the Delhi office premises and at M/s Win Drugs Ltd. in Jind, Haryana. 
• During the Delhi search, officers found Raj Kumar Arora (respondent no. 1) on the premises and recovered 25 cartons containing 40,000 unlabeled and 1 labelled glass ampoules of Buprenorphine Hydrochloride. 
• At the Haryana facility, officers seized an additional 23,400 Buprenorphine injections and 100 grams of Buprenorphine powder. 
• Respondent no. 1 provided a statement revealing a network involving himself, Mohd. Shebar Khan (respondent no. 2), Devang Bipin Parekh (respondent no. 3), and Naresh Mittal of Win Drugs Ltd. in the illegal manufacture, storage, and distribution of Buprenorphine. 
• All three respondents were subsequently arrested and charged under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 
• The Special Court framed charges against the respondents on February 8, 2005, finding prima facie evidence of their involvement. 
• The High Court granted bail to all respondents, raising questions about whether Buprenorphine Hydrochloride fell under the NDPS Act or should be regulated under the Drugs and Cosmetics Act, 1940 (D & C Act). 
• The respondents filed an application under Section 216 of Criminal Procedure Code, 1973 for amendment/alteration of the charge, which the Special Judge allowed, ruling that the case should proceed under the D&C Act rather than the NDPS Act. 
• The appellant's revision petition against this order was dismissed by the High Court, which followed the Supreme Court's reasoning in State of Uttaranchal v. Rajesh Kumar Gupta that if a drug is not listed in Schedule I of the NDPS Rules, Section 8 of the NDPS Act would not apply. 
• The High Court determined that the matter should be tried by the Metropolitan Magistrate under the provisions of the D&C Act rather than as an NDPS case. 

What were the Court’s Observations? 

• The Court discussed the law on alteration of charges as enunciated under Section 216 of CrPC. 
• The Court observed that the provision provides that the Court is empowere to “add” or “alter” any charge framed. The provision does not expressly provide the stage after which the power under Section 216 CrPC can be exercised. Logic however dictates that the same can be exercised only once charge is framed under Section 228 of CrPC.   
• If no charge is framed there arises no situation to add or alter it. As a natural corollary if an accused has already been discharged under Section 227 CrPC, no application or action under Section 216 CrPC would be maintainable. 
• The Court further observed that P. Ramanatha Aiyar in his Law Lexicon (6th Edn.) defined “alter” as “to make a change in; to modify; to vary in some degree”.  
• To illustrate a case of alteration the Court observed: 
  • Let’s say an accused is charged with an offence initially under Section 323 IPC for simple hurt. If the Trial Court is of the opinion that the case is in fact one of grievous hurt, it may alter the charge of the accused for an offence under Section 325 IPC. This would be an alteration since the broad subject matter continues to be the same. Further, to amend would imply that the modification made in the subject improves it, which might not necessarily be the case with an alteration.
• Thus, the Court concluded that amendment may involve an alteration but alteration does not always amend. 
• The Court observed that Section 216 of CrPC provides the Court with the power to- one alter a charge and two add to a charge. However, the provision does not imply that the Court can delete the charge. 
• In this regard the Court cited the recent judgment of K. Ravi v. State of Tamil Nadu and Another (2024) wherein the Supreme Court held the following: 
  • Section 216 does not give any right to the accused to file a fresh application seeking discharge after the charge has been framed by the Court. 
  • The Court held that an accused cannot seek a discharge under the garb of modification/alteration of charge through a Section 216 application. 
  • The Court also highlighted that it has become routine practice for the accused to file an application under Section 216 CrPC after their application for discharge under Section 227 CrPC is dismissed. 
• Further, the Allahabad High Court also held in the case of Dev Narain v. State of U.P. and Another (2023) that alteration of charge and deletion of charge hold different field and that these two cannot be intermingled. 
• The Supreme Court in the facts of the present case ruled that dealing in Buprenorphine Hydrochloride constitutes an offense under Section 8 of the NDPS Act despite its absence from Schedule I of the NDPS Rules. 
• The Court determined that the decision in Sanjeev v. Deshpande (2014) should apply retrospectively, allowing accused persons to be tried by Special Judges under NDPS provisions rather than under the D & C Act. 

What is Alteration of Charges under Section 216 CrPC? 

• Section 216 of CrPC provides for alteration of charges. 
• It is provided for under Section 239 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).  
• Section 216 of CrPC provides for the following: 
  • Any court can change or add to charges at any time before pronouncing judgment. 
  • Every change or addition must be read and explained to the accused. 
  • If the court believes the change or addition won't disadvantage the accused's defense or the prosecutor's case, the trial can continue as if the altered charge was the original one. 
  • If the court believes the change or addition might disadvantage either party, it can either order a new trial or adjourn the current trial for a necessary period. 
  • If the altered charge requires prior sanction for prosecution, the case cannot proceed until such sanction is obtained, unless sanction was already granted for prosecution based on the same facts. 
• The power under Section 216 CrPC is exclusive to the concerned Court and no party can seek such an addition or alteration of charge as a matter of right by filing an application. 
• The provision has been enacted with the salutary object to ensure a fair and full trial to the accused person(s) in each case. 
• In the case of Anant Prakash Sinha v. State of Haryana and Another (2016) the Supreme Court summarised the principles on alteration of charges as follows: 
  • First, the test for exercise of power under Section 216 CrPC is that it must be founded on the material available on record and therefore, itcan be on the basis of the complaint or the FIR, or other accompanying documents or materials brought on record during the course of the trial. The charge which has been framed by the Trial Court must therefore be in accord with the materials available before him 
  • Secondly, the power must not be construed in a restricted manner to mean that unless evidence has been let in, the charges that have already been framed cannot be altered. The Court is empowered to change or alter the charge framed, if it finds that there is a defect or that something has been left out in the order framing charge. 
  • Thirdly, it is obligatory for the Court to ensure that no prejudice is caused to the accused due to the addition or alteration of charge. The accused must be informed and made aware of the new charge as also the case against him so that he can understand the defence that can be led on his behalf.