K C Arul vs The State Of Andhra Pradesh
2021 Latest Caselaw 548 AP

Citation : 2021 Latest Caselaw 548 AP
Judgement Date : 2 February, 2021

Andhra Pradesh High Court - Amravati

K C Arul vs The State Of Andhra Pradesh on 2 February, 2021

Bench: Lalitha Kanneganti

     THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

          CRIMINAL REVISION CASE No.176 OF 2020

ORDER:-

      This Criminal Revision Case is filed under Sections 397 and

401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.')

questioning the impugned order dated 21.01.2020 passed in

Crl.M.P.No.1257 of 2019 in S.C.No.198 of 2016 by learned VIII

Additional District and Sessions Judge -Cum- Special Judge for

the Trial of Offences against Women, Nellore whereby the petition

filed by the Prosecution under Section 216(1) of Cr.P.C. seeking

alteration of charge from Section 306 to 302 of the Indian Penal

Code, 1860 (for short 'I.P.C.') was allowed.


2.    The case of the petitioners in brief is:

      Originally a crime was registered basing on the complaint

given by the brother of the deceased alleging that his sister died

due to unbearable harassment made by A1 to A5, crime No.40 of

2016 was registered for the offences punishable under Sections

498-A and 306 read with 34 of I.P.C. and subsequently the same

was numbered and tried as sessions case. Initially the Court below

has framed charge under Section 306 I.P.C. After completion of

trial when the matter was coming up for arguments the

prosecution has filed a petition under Section 216(1) of Cr.P.C.

seeking alteration of charge from Section 306 to 302 I.P.C. on the

ground that the incident took place in the house of in-laws of the

deceased and the doctors who conducted postmortem examination

over the dead body of the deceased opined that the death was due
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to homicidal hanging. Hence, the offence falls under Section 302

I.P.C.

3.       The learned counsel appearing on behalf of the accused

before the Court below opposed the said petition alleging that prior

sanction from competent authority for adding charge under

Section 302 I.P.C. is not obtained.

4.       After considering the submissions made on either side the

Court below has allowed the said petition by making reference to

Section 216 Cr.P.C. Aggrieved by the same the accused are before

this Court.

5.       Heard Sri Venkat Rao Ravulapalli, learned counsel for the

petitioners and learned Public Prosecutor for the respondent-state.

6. Learned counsel for the petitioners submits that the

prosecution has not made out the ingredients to constitute and

alter the charge from Section 306 to 302 I.P.C. The prosecution

failed to assign reasons for filing such petition at belated stage as

postmortem report was available with the Police right from

investigation.

7. Learned Public Prosecutor submits that charge can be

altered by the Court at any time before pronouncement of the

judgment based on the material available or subsequently brought

on record during the course of the trial.

8. The Court below initially took cognizance of the offence

under Section 306 I.P.C. Subsequently upon the petition filed by

the prosecution under Section 216 Cr.P.C., Section 302 I.P.C. was

altered by observing that as per the medical evidence the cause of

death is due to homicidal hanging.

9. In order to adjudicate upon the dispute, it is necessary to

refer to Section 216 Cr.P.C.

"216. 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 had 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."

From the above it is clear that Section 216 Cr.P.C. empowers

the Court to alter or add any charge at any time before the

judgment is pronounced. It is an enabling provision for the Court

to exercise its power under certain contingencies which comes to

its notice or brought to its notice. In such a situation, if it comes to

the knowledge of the Court that a necessity has arisen for the

charge to be altered or added. Further Section 217 Cr.P.C. provides

an opportunity to the parties to recall witnesses when charge is

altered or added after commencement of the trial.

10. The Court below after taking into consideration the

postmortem report had concluded that ingredients of offence under

Section 302 I.P.C. are attracted and accordingly altered the