The High Court of Kerala ruled that the power to alter charges lies exclusively with the Court and can be exercised at any time before judgment. In this case, the Court allowed the public prosecutor's application to alter the charge based on evidence indicating a more serious offence, invoking its authority under Section 216 of the CrPC.
Brief Facts:
The Petitioner challenged the order in which the Court allowed an application filed by the public prosecutor under Section 216 of CrPC to alter the charge against the Petitioner. Initially, the Petitioner was charged with an offence punishable under Section 304 of the Indian Penal Code (IPC). However, the prosecutor's application, filed under Section 216 of the Code of Criminal Procedure (CrPC), led to the charge being altered to an offence punishable under Section 302 of the IPC.
Contentions of the Petitioner:
It was contended that the Respondent has no right to seek alteration of charge though it is permissible at the volition of the Court.
Observations of the court:
The Court observed that the 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 a petition to alert and ignite the court to exercise the power under Section 216 of CrPC. 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.
The Bench further observed that either at the instance of the prosecution or on behalf of the accused, when the Court is ignited regarding the necessity of alteration of charge, the Court can exercise its power under Section 216 of CrPC, based on evidence. when the Court feels that power under Section 216 to alter the charge shall be invoked suo motu based on the evidence recorded, the Court has the power to alter the charge resorting to its power under Section 216 of CrPC. It was ruled that alteration of charge is the vested right of the court within the province of the court and not that of the parties
The decision of the Court:
Based on the facts and circumstances of the matter, the Bench accordingly dismissed the petition.
Case Title: Aswathy K. P. v. State of Kerala
Coram: Hon’ble Mr. Justice A. Badharudeen
Case No.: Crl. Rev. Pet No. 437 of 2024
Advocates for the Petitioner: Advs. Mr. Anesh Paul, Mr. Fredy Francis
Advocate for the Respondent: Adv. Mr. M. P. Prasanth
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