12. During the time of mahazar, page 56 of the charge
sheet recorded that the following gold articles were on
Deceased body, they are Mangal sutra with dollar, One
gold ring, one pair of gold earrings and one pair of Silver
leg ring, one pair of Silver leg chain recovered from her
body which confirms that Deceased was wearing enough
jewellery like any normal household women wears at
home.
16. On the day of the incident 12th December 2013.
after taking breakfast with Accused No:1 at Bangalore
home. Accused No.2 visited to his Bangalore office on
official work and was there between 10.30am to
06.30pm as evidence marked Exhibit D 10 by DW-L. Also
the PW-1 Anbalagan, PW-2 Ravi. PW-3 Keerthy. PW-7
Gunawathi and PW-A Selvi before Hon'ble court have not
deposed any incriminating facts to attract offense under
section 498A even on the day of incident 12th December
2013 when Accused No.1 and Accused No.2 are present
in Bangalore.
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17. The Deceased has not called her family members
either from her Bangalore mobile number 8553777107 or
land line number 080-25262137 on 11th and 12th
December 2013 but made several calls & SMS's to her
boyfriend Sakthi Vel to mobile number 9688636364
including last calls to her boyfriend and sent last SMS to
her boyfriend as evidence marked Exhibit-D-01 and
Exhibit-D-02 by DW-1 which was conveniently not
enquired by the Investigation Officer. The I.O. has also
not investigated regarding the Dual Sim Mobile-Phone
andja Diary as mentioned in charge sheet page number
56 which was critical piece evidence.
18. The Accused No.1 himself Voluntarily called the
Deceased father Anbalagan PW-1 on 12th December 2013
at 19.04pm as evidence marked Exhibit-D-06 by DW-1
and until then Deceased family did not know about the
incident or get any calls about the so called ill-treatment
and even if they would have got any calls between when
they left from Bangalore ie., on 5th December 2013 to
the date of incident 12th December 2013, they would
have immediately informed their relative Mahendran CW-
09 in Bangalore to visit his daughter. That has not
happened since all were normal during those days it is
understood and evident that no such torture given
actually. Otherwise why IO or her family members or
Mahendran have not recorded about it before IO Hon'ble
court when they depose their witness statements since
complaint is fictious and fabricated.
19. The Witness of Mr. Keerthy, Mrs. Gunavathi and
Mrs. Selvi the brother in law sister and Mother have not
tendered themselves for cross examination and hence
their deposition has be struck down by the Hon'ble court.
20. There is no Direct the accusations and also all the
above Prosecution witnesses evidence produced by
Prosecution for any W-1, PW-2, PW-3, PW-7, PW-8 have
not stated anything before Hon'ble Court incriminating
the Accused, to attract offense under section 498A.
Wherefore it is prayed before the Hon'ble court the
Application filed Under Section 216 of the Code of
Criminal procedure to ter frame additional charge under
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Section 498A of I.P.C. is not maintainable and has to be
dismissed with cost in the interest of Justice."
On the said application, the concerned Court invoking its
power under Section 216 of the Cr.P.C. adds the offence under
Section 498A of the IPC by the following order and posts the
matter for framing of additional charge. The order of the
concerned Court reads as follows:
"I have heard arguments and perused the records.
The PSI of JB Nagar police has filed charge sheet
against the accused No.1 and 2 for the offenses
punishable U/sec. 306 and 109 of IPC. The accused No.1
is the husband of the deceased. Their marriage was
solemnized on 15.11.2013 and she committed suicide on
12.12.2013. as per the charges framed against both the
accused it is seen that the deceased was not good
looking women and on said ground both the accused
harassed and embarrassed her and often told her to
come before accused No.1 with proper makeup. This also
led as per prosecution case the deceased to committed
suicide. As per Sec. 498A explanation-1, any kind of
harassment amounts to cruelty. The above conduct of
accused No.1 and 2 clearly fit within the 04 corners of
Sec. 498A of IPC of course subject to proof. However
there is no bar to frame charge for the offence
punishable U/sec. 498A of IPC. Therefore I am of the
opinion that there is sufficient materials to frame
additional charges against the accused No.1 and 2 for
the offence punishable U/sec. 498A of IPC. In the result
1 proceed to pass the following;
ORDER
The application filed by the Learned PP U/sec. 216
of Cr.P.C is hereby allowed and case is set down to
frame additional charge against accused No.1 and 2 for
the offence punishable U/sec. 498A of IPC.
For framing of additional charge by 22.3.25."
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As observed herein above, the issue is the power under
Section 216 of the Cr.P.C.
8. The learned counsel appearing for the petitioner has
placed reliance upon the judgment of the Apex Court in the
case of DIRECTORATE OF REVENUE INTELLIGENCE
(supra), wherein the Apex Court considers the entire spectrum
of the law and interprets the provision under Section 216 of the
Cr.P.C., and holds as follows:
"141. One another question of law which has sprung
up in the facts of our case is whether, after the charges
are framed by the Trial Court, an accused could be
discharged or his charges could be deleted through an
application made under Section 216 of the CrPC.
iii. The scope of Section 216 of the Code of Criminal
Procedure, 1973 ('the Cr.P.C.' for short)
142. Section 216 of the CrPC reads as thus:
"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.
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(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."
(Emphasis supplied)
143. Under this provision, any Court is
empowered to "alter" or "add" to any charge
framed against the accused, at any time before the
judgment is pronounced. Therefore, an outer time
limit is set i.e. the power conferred upon the
Courts cannot be exercised after a decision is
pronounced in the matter. Although the provision
does not expressly provide for the stage of the trial
after which the power under Section 216 CrPC can
be exercised, yet logic and rationale obviously
requires it to be exercised after a charge has been
framed by the Trial Court under Section 228 CrPC.
For if no charge has been framed, there arises no
occasion 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.
144. The Court may alter or add to any charge
either upon its own motion or on an application by
the parties concerned. Therefore, such a power can
be invoked by the Court suo moto as well. This
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. It would be the Trial Court
which must decide whether a proper charge has
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been framed or not, at the appropriate stage of the
trial. On a consideration of the broad probabilities
of the case, the total effect of the evidence and
documents adduced, the Trial Court must satisfy
itself that the exercise of power under Section 216
is necessary. The provision has been enacted with
the salutary object to ensure a fair and full trial to
the accused person(s) in each case.
145. This Court in Anant Prakash Sinha v. State
of Haryana, (2016) 6 SCC 105 summarised the
principles as regards Section 216 CrPC. Herein,
charges were framed against the appellant-
husband for the commission of offences punishable
under Sections 498-A and 323 IPC. During the
pendency of the matter, the informant wife had
filed an application under Section 216 CrPC for
framing an additional charge under
Section 406 IPC against both the husband and the
mother-in-law on the ground that there was an
express complaint with regard to the
misappropriation of her entire Stridhan and other
articles. Hence, it was contended that the accused
persons had committed criminal breach of trust,
however, a charge sheet was not filed in respect of
the said offence. The application was allowed by
the Trial Court and subsequently, the Revisional
Court upheld the framing of charge under
Section 406 IPC only against the appellant-
husband. This Court while agreeing with the High Court
summarised the principles underlying
Section 216 CrPC as follows:
i. 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, it can 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.
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ii. 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.
iii. 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.
The relevant observations are reproduced
hereinbelow:
"18. From the aforesaid, it is graphic
that the court can change or alter the
charge if there is defect or something is
left out. The test is, it must be founded on
the material available on record. It can be
on the basis of the complaint or the FIR or
accompanying documents or the material
brought on record during the course of
trial. It can also be done at any time
before pronouncement of judgment. It is
not necessary to advert to each and every
circumstance. Suffice it to say, if the court
has not framed a charge despite the
material on record, it has the jurisdiction
to add a charge. Similarly, it has the
authority to alter the charge. The principle
that has to be kept in mind is that the
charge so framed by the Magistrate is in
accord with the materials produced before
him or if subsequent evidence comes on
record. It is not to be understood that
unless evidence has been let in, charges
already framed cannot be altered, for that
is not the purport of Section 216 CrPC.
19. In addition to what we have stated
hereinabove, another aspect also has to
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be kept in mind. It is obligatory on the
part of the court to see that no prejudice
is caused to the accused and he is allowed
to have a fair trial. There are in-built
safeguards in Section 216 CrPC. It is the
duty of the trial court to bear in mind that no
prejudice is caused to the accused as that has
the potentiality to affect a fair trial. It has been
held in Amar Singh v. State of Haryana [Amar
Singh v. State of Haryana, (1974) 3 SCC
81 : 1973 SCC (Cri) 789] that the accused
must always be made aware of the case
against him so as to enable him to understand
the defence that he can lead. An accused can
be convicted for an offence which is minor than
the one he has been charged with, unless the
accused satisfies the court that there has been
a failure of justice by the non-framing of a
charge under a particular penal provision, and
some prejudice has been caused to the
accused. [...]"
(Emphasis supplied)
146. In another decision of this Court
in Nallapareddy Sridhar Reddy v. State of
A.P., (2020) 12 SCC 467, the scope of powers
under Section 216 was elaborated. It was stated
that the power under this provision to alter a
charge is an exclusive and wide-ranging power and
this is clear from the fact that it may be exercised
at any time before the judgment is pronounced,
meaning also at a stage wherein the evidence and
arguments are completed and the judgment is
reserved. It was further stated that if the Court is
of the opinion that there was an omission in the
framing of charge or if the existence of the factual
ingredients constituting another offence is also
inferred from a prima facie examination of the
material brought on record, the alteration or
addition of a charge can be done. Such material
brought on record must have a direct nexus with
the ingredients of the alleged offence. This Court
cautioned that the power under this provision must be
exercised judiciously and observed as follows:
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"21. From the above line of precedents,
it is clear that Section 216 provides the
court an exclusive and wide-ranging
power to change or alter any charge. The
use of the words "at any time before
judgment is pronounced" in sub-section
(1) empowers the court to exercise its
powers of altering or adding charges even
after the completion of evidence,
arguments and reserving of the judgment.
The alteration or addition of a charge may
be done if in the opinion of the court there
was an omission in the framing of charge
or if upon prima facie examination of the
material brought on record, it leads the
court to form a presumptive opinion as to
the existence of the factual ingredients
constituting the alleged offence. 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.
Addition of a charge merely commences the
trial for the additional charges, whereupon,
based on the evidence, it is to be determined
whether the accused may be convicted for the
additional charges. The court must exercise its
powers under Section 216 judiciously and
ensure that no prejudice is caused to the
accused and that he is allowed to have a fair
trial. The only constraint on the court's power
is the prejudice likely to be caused to the
accused by the addition or alteration of
charges. Sub-section (4) accordingly prescribes
the approach to be adopted by the courts
where prejudice may be caused."
(Emphasis supplied)
a. What is the meaning of the expression "alter"
occurring in Section 216 CrPC.
147. P. Ramanatha Aiyar in his Law
Lexicon (6th Edn.) defined "alter" as "to make a change
in; to modify; to vary in some degree". "Alteration" is
defined as a "change or substitution of one thing for
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another". Further, it has been elaborated that the term
"alter" is to be distinguished from its synonyms i.e.,
"change" and "amend". To change something may
import the substitution of an entirely different thing,
while on the other hand, to alter would be to operate
upon a subject matter which continues to be the same
objectively while just modified in some particular. To
illustrate it better in the context of charging an accused
with an offence, 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. In other words, an amendment may involve
an alteration but an alteration does not always amend.
148. In Sohan Lal v. State of Rajasthan, (1990)
4 SCC 580, this Court while holding that an
application under Section 216 would not be
maintainable against persons who have already
been discharged, elaborated the meaning of the
words "alter and add to" as follows:
"12. Add to any charge means the
addition of a new charge. An alteration of
a charge means changing or variation of
an existing charge or making of a different
charge. Under this section addition to and
alteration of a charge or charges implies
one or more existing charge or charges."
(Emphasis supplied)
149. Therefore, to alter a charge would be to
vary an existing charge and make a different
charge. Hence, when the Court exercises its power
under Section 216, either on its own motion or on
an application made by the parties, and "alters" a
charge, it would be necessary that the existing
charge be varied and a new charge be made. In the
instant case, in Criminal Appeal No. 1319 of 2013, the
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Trial Court in its order dated 30.11.2006 had held that
the charge framed by his predecessor for the offence
under Sections 8, 22 and 29 of the NDPS Act had not
been made out and that the case of the accused had to
be a case under the D&C Act which would be triable by
the Metropolitan Magistrate. In Criminal Appeal No. 272
of 2014, again, the Trial Court in its order dated
17.04.2010 similarly held that the offences under
Sections 8 and 22 of the NDPS Act were not made out
and the matter would fall within the rigours of the D&C
Act.
150. However, if careful attention is paid to the
orders of the Special Judge in both the appeals, it cannot
be said that they have exercised their power under
Section 216 to "alter" the charge of the accused persons.
We say so because, the charge which existed under
Sections 8, 22 and 29 of the NDPS Act in Criminal Appeal
No. 1319 of 2013 and under Sections 8 and 22 of
the NDPS Act in Criminal Appeal No. 272 of 2014
respectively were not varied and a different charge under
a specific provision of the D&C Act was not made. In
such a circumstance, in effect, the Special Judge had
discharged or deleted the charge of the accused persons
under the NDPS Act in both the appeals."
(Emphasis supplied)
As a conclusion, the Apex Court holds that the Court may
alter or add the charge either upon its own motion or on an
application of the parties concerned. Therefore, the prosecution
is also a party, which can seek alteration of the charge. The
power of the Court to alter the charge rests even after
reserving the order for its judgment, but before the
pronouncement of the order. Therefore, the power of the
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concerned Court to alter the charge under Section 216 of the
Cr.P.C. is well recognized by a plethora of judgments rendered
by the Apex Court, and whether it should be by the prosecution
or by the victim or by the Court suo motu, is also considered by
the Apex Court in the aforesaid judgment. The Apex Court
clearly holds that it can be by either of the parties and not only
suo motu by the Court. Here, the prosecution has filed an
application. No fault can be found with the prosecution filing
the said application.
9. The judgment of the Co-ordinate Bench, which the
learned counsel appearing for the petitioners would place
reliance upon would have become applicable, but for the
judgment of the Apex Court, wherein the Apex Court delineates
the entire issue and holds that the parties are well within their
jurisdiction to file an application to alter the charge, which is to
be considered by the concerned Court. The concerned Court
has considered the law and passed the order by rendering
cogent reasons. Therefore, there is no warrant of interference.
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10. Since the trial is on for the last 12 years, I deem it
appropriate to direct its conclusion, within an outer limit of four
months from the date of receipt of a copy of the order,
including the trial for the altered charge under Section 498A of
the IPC. With the aforesaid observations, the petition stands
rejected.
Ordered accordingly.
I.A.No.1 of 2025 stands disposed as a consequence.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
List No.: 1 Sl No.: 4
