Trial Court Can Only Alter Or Add To Charges Already Framed, Can't Delete A Charge: Karnataka HC Allows Plea Against Deletion Of Charges In Rape Case

The Karnataka High Court has held that under Section 216 of Criminal Procedure Code, a trial court can only alter the charge or add to the charge which is already framed. It cannot delete a charge which has been already framed by it, said the court

A single judge bench of Justice S Vishwajith Shetty said:

“If a charge is framed by the Trial Court for an offence which is not made out by the prosecution by producing sufficient material during the course of the trial, the Court can always acquit the accused for the said offence or the Court can punish the accused for lesser offences but after framing of charge before pronouncement of final judgment, the Court has no power to delete any charge which is framed by it.”

The court allowed a petition filed by a woman and set aside the order dated 16-06-2022 by which the trial court had deleted the charges framed under Sections 376(2)(f) of IPC and Section 4 & 6(N) of the POCSO Act.

The woman had filed the case against her husband for offences punishable under sections 498(A), 354(A), 354(C), 376(2)(f) of IPC and under Section 4 & 6(N) of the Protection of Children from Sexual Offences Act, 2012. The police filed its chargesheet for the offences.

The accused filed an application under section 227 of CrPC seeking discharge in the case. However, the court rejected the said application and proceeded to frame charges against him for the offences.

Later the accused filed an application under section 216 CrPc seeking deletion of serious charges. The court allowed the same. Following which the complainant approached the court.

It was contended by her that mere reading of Section 216 of Cr.P.C, would go to show that the Court has no power to delete any offence from the charge once the charges are framed against the accused.

“By allowing the application filed under Section 216 of Cr.P.C, the Trial Court has acquitted the respondent for the offences punishable under Section 376(2)(f) of IPC and Section 4 & 6(N) of the POCSO Act which it could not have done having rejected the respondent's application under Section 227 of Cr.P.C,” she told the court.

However, the accused opposed the petition contending that while passing orders on the application filed by him under Section 227 of Cr.P.C, the Trial Court had clearly observed that there is no material to proceed against him for the offences punishable under Section 376(2)(f) of IPC and Section 4 & 6(N) of the POCSO Act.

"By filing an application under Section 216 of Cr.P.C, the accused has prayed to alter the charges accordingly and considering the same, the Trial Court has allowed the same,” he said, adding that error in framing of charge can be brought to the notice of the Court by anybody including the accused.

The bench referred to the judgment of Supreme Court passed in case of P. Kartikalakshmi V Sri Ganesh And Another and that of a coordinate bench in the case of Central Bureau Of Investigation V Gali Janardhan Reddy.

“I am of the considered view that the power of the Trial Court under Section 216 of Cr.P.C, is limited only to alter the charge or add to the charge which is already framed and in the guise of exercising its power under Section 216 of Cr.P.C, the Trial Court cannot delete a charge which has been already framed by it,” the court said.

Further it observed, “Merely for the reason that the Trial Court while passing an order on the application filed by the respondent under Section 227 of Cr.P.C had made an observation that there was no sufficient material to proceed against the accused persons for certain offences, the Trial Court in exercise of its powers under Section 216 of Cr.P.C cannot delete the charges framed by it for the said offences as the criminal procedure code does not confer such a power on the Court.”

Allowing the petition, the bench held the trial court erred in allowing the application filed by the accused under Section 216 of Cr.P.C.

Case Title: KM And KC & ANR

Case No: CRL.R.P. NO. 919 OF 2022

Citation: 2023 LiveLaw (Kar) 130

Senior Advocate Murthy D Naik a/w Advocate Prasanna Kumar S for petitioner.

Advocate Padmavathi N for R1.

HCGP Rashmi Jadhav for R2.