The Himachal Pradesh High Court recently comprising of a bench of justice Jyotsna Rewal Dua while adjudicating upon a plea filed for Addition of Charge under S.216 Criminal Procedure Code remarked that Addition of Charge under S.216 CrPC Valid when no prejudice whatsoever caused to the case of defense or prosecution. (Jitender Kumar vs. State of Himachal Pradesh)
Facts of the case
The present petition was filed being aggrieved by the order passed by the learned Special Judge (Forests), Shimla/Trial Court, modifying/altering the charge against the petitioner, instant revision petition has been preferred. The state moved an application for the addition of charge under Section 120B of the Indian Penal Code (IPC) as well as for alteration of charge under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988.
It was alleged that the accused persons had connived with each other to hatch a conspiracy and misappropriate public funds. This application was allowed by the learned Trial Court on 18.08.2020 to the extent that the charge for offence of criminal misconduct under Section 13(1)(c) of the Prevention of Corruption Act was altered/modified. Aggrieved, the petitioner has challenged the aforesaid order.
Contention of the Parties
Learned counsel for the petitioner contends that when the other co-accused persons stood discharged, then there is no point for framing charge under Section 120B IPC against the petitioner. Primarily, aggrieved against the alleged framing of an additional charge against the petitioner under Section 120B IPC, the instant petition has been preferred.
The petitioner further remarked Insofar as addition/alteration of charge under Section 13(1)(c) of the Prevention of Corruption Act is concerned, the objection of learned counsel for the petitioner is that the charges were framed on 11.4/8.2014. Almost six years thereafter, the application for addition/ alteration of charges has been made by the State at the stage when the matter was fixed for arguments. Such an application deserves to be dismissed.
Courts Observation & Judgment
The bench taking note of section 216 Cr.PC, which is relevant for alteration/modification of the charge. The bench referred to the case of Hon’ble Apex Court in (2020) 12 SCC 467, titled Dr. Nallapareddy Sridhar Reddy Versus State of Andhra Pradesh and others, wherein the appellant therein was charged only for offences under Section 498A IPC along with Sections 3 and 4 of the Dowry Prohibition Act. In an application moved by the State under Section 216 Cr.PC for the addition of charges under Sections 406 and 420 IPC, it was observed by the court: “Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase “add to any charge” in SubSection (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done “at any time before judgment is pronounced”. Sub-Section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the persecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub-Section (4) contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused. Section 217 of the CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.”
The bench taking note of the same remarked that thus, the charge could be altered at any time before the pronouncement of the judgment subject to conditions set forth in Section 216 Cr.PC as elucidated above.
The bench dismissing the petition remarked, “Instant was a case where charge under Section 13(2) of the Prevention of Corruption Act stood already framed against the petitioner. By allowing the application moved by the State under Section 216 Cr.PC, the learned Trial Court had only allowed alteration of charge to the extent that Section 13(1)(c) of the Prevention of Corruption Act was added. During hearing of the case before the learned Trial Court, learned Public Prosecutor stated that the evidence was already over and no witness was to be recalled or re-summoned or to be called or examined even after alteration of the charge. Similarly, learned counsel for the accused/petitioner also stated that the petitioner does not intend to recall or re-summon or examine any witness with regard to the altered charge. Thus, no prejudice whatsoever has been shown to have been caused to the accused by the alteration/modification of the charge.”
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