[S.216 CrPC] Alteration Of Charge Is A Vested Right Of Court, Within Its Domain And Not That Of The Parties: Kerala High Court

The Court stated that parties have no such vested right, but they can move an application seeking alteration of charges which the Court will decide.

Justice A. Badharudeen observed thus:

“The above discussion declares the legal position without any iota of doubt that alteration of charge is the vested power of the court and the same is within the domain of the Court, at any time before judgment is pronounced. But parties to the litigation have no such vested right. However, that does not mean that parties could not file petition to alert and ignite the court to exercise the power under Section 216 of Cr.P.C. In an appropriate case, either the Prosecutor or the defence counsel moves an application, seeking alteration of charge that the same would only alert the court regarding the power vested on the court and ultimately, the court will decide whether alteration of charge in the facts of the case is necessary. Indubitably, alteration of charge is the vested right of the court within the province of the court and not that of the parties”

In the facts of the case, the revision petitioner is challenging the order of the Assistant Sessions Judge that allowed an application for alteration of the charge moved by the Public Prosecutor. The Assistant Sessions Judge altered the charge against the revision petitioner from Section 304 of the IPC (punishment for culpable homicide not amounting to murder) to an offence punishable under Section 302 (punishment for murder) of the IPC.

The revision petitioner contended that the prosecution has no right to seek alteration of charges under Section 216 of the CrPC.

The Court referred to Silvester @ Silver v. State of Kerala (2023) to state that proceedings initiated by the public prosecutor or de facto complainant for alteration of charges were also not vitiated since they could bring defects/omissions in the charge to the notice of the Court. It further stated that while exercising powers under Section 216 of the CrPC, the Courts should ensure that no prejudice is caused to the accused and that he gets a fair trial.

The Court further stated that in Dr.Nallapareddy Sridhar Reddy v. State of Andhra Pradesh (2023), the Apex Court had held that the Trial Court could alter charges even after the completion of evidence, arguments and reserving of the judgment. It stated that the power of the Trial Court is exclusive, wide-ranging and unrestrained.

The Court stated that the Trial Court could alter or add charges by relying upon materials or evidence on record such as FIR. It said, “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.”

In the facts of the case, the Court found that the application seeking alteration of charges was allowed based on the statement of the prosecution witness that the revision petitioner committed the offence of murder.

Accordingly, the Court dismissed the revision petition.

Counsel for Revision Petitioner: Advocates Anesh Paul, Fredy Francis

Counsel for Respondents: Public Prosecutor M P Prasanth

Citation: 2024 LiveLaw (Ker) 351

Case Title: Aswathy K. P. @ Aswathy v State of Kerala

Case Number: CRL.REV.PET NO. 437 OF 2024

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