Jose Prakash @ Jose and Sheena v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, ``` ## **`1945`** ``` CRL.MC NO. 6314 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CC 161/2016 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE PALAKKAD`** ``` CRIME NO.2211 OF 2012 OF PALAKKAD TOWN NORTH POLICE ``` ## **`STATION`** ## **`PETITIONER/S:`** ``` 1JOSE PRAKASH @ JOSE AGED 55 YEARS S/O.RAMANKUTTY, KUNNAMKULANGARA, PIRAYIRI, PALAKKAD, PIN - 678003 2SHEENA AGED 47 YEARS W/O.PRABHAKARAN, KUNNAMKULANGARA HOUSE, PIRAYIRI, PALAKKAD, PIN - 678003 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` PUBLIC PROSECUTOR G SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6314 of 2023 **==> picture [20 x 9] intentionally omitted <==** ## **K.BABU, J** . -------------------------------------Crl.M.C.No.6314 of 2023 --------------------------------------Dated this the 9[th] day of August, 2023 ## **O R D E R** The challenge in this Crl.M.C. is to the decision of the Court below to frame additional charges against the accused. The petitioners are accused Nos. 2 and 3 in C.C.No.161 of 2016 on the file of the Chief Judicial Magistrate Court, Palakkad. After completing the investigation, final report was submitted against the petitioners and the other accused alleging offences punishable under Sections 342, 323, 354, 448, 294(b) r/w Section 34 of the Indian Penal Code. 2. The prosecution case is that on 21.10.2012, at 15.00 hrs, the accused, in furtherance of their common intention, pushed CW2 in the bedroom of the defacto complainant. It is further alleged that the accused uttered obscene words against the defacto complainant Crl.M.C.No.6314 of 2023 ..3.. when she questioned the acts of the accused. 3. The Court below took cognizance of the offences and framed charges under the aforementioned Sections. The Court proceeded with the trial. After completing examination of the witnesses, the accused were questioned under Section 313 Cr.P.C. and thereafter the learned Magistrate on 12.07.2023 altered the charges by adding Section 452 IPC after deleting Section 448. 4. The course adopted by the Trial Court is under challenge in these proceedings. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. The learned counsel for the petitioners contended that no sufficient opportunity was given to the petitioners/accused before taking a decision to alter the charge. It is further contended that no reasoned order was passed by the learned Magistrate before entering into the conclusion that the charges are liable to be altered. Crl.M.C.No.6314 of 2023 ..4.. 7. The learned Public Prosecutor, per contra, contended that the power of the Court to alter the charges is very wide. The Court can alter or add any charge at any time before the judgment is pronounced. The proceedings itself reflects the sound reason for alteration of the charge, the learned Public Prosecutor submitted. ## 8. Section 216 Cr.P.C. reads 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. (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. Crl.M.C.No.6314 of 2023 **==> picture [20 x 8] intentionally omitted <==** 9. Section 216 Cr.P.C. authorises the Court to alter or add any charge at any time before the judgment is pronounced. The provision enables alteration or addition of a charge based on the material brought on record during the course of trial. On the scope of Section 216 in **Dr.Nallapareddy Sridhar Reddy v. State of Andhra Pradesh** [(2020) 12 SCC 467] the Apex Court held thus:- “Section 216 provides the court an exclusive and wideranging 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, Crl.M.C.No.6314 of 2023 ..6.. 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. Subsection (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused.” ## 10. In **Umesh Kumar v. State of Andhra** **Pradesh** [(2013) 10 SCC 591], the Apex Court held that charges can be added or altered at any time during the trial before the pronouncement of the judgment, and the only legal requirement is that the witness has to be recalled as provided under Section 217 Cr.P.C. when a charge is altered or added by the Court. 11. Following **Umesh Kumar v. State of Andhra Pradesh** (Supra) in **Girraj Prasad Meena v. State of Rajasthan and others** [(2014) 13 SCC 674], the Apex Court held that charges can be altered/amended/changed Crl.M.C.No.6314 of 2023 ..7.. and any change can be added at any stage up to the stage of conviction in view of the provisions of Section 216 Cr.P.C. and that the only legal requirement is that in case the trial court exercises its power under Sections 228/251 Cr.P.C., the accused is entitled to an opportunity of hearing as required under Section 217 Cr.P.C. 12. In **Hamza N.P. and another v. State of Kerala** [2021(2) KHC 351] this Court had considered the power of the trial Court under Section 216 Cr.P.C. In **Hamsa,** this Court held thus:- 28. However, when the Trial Court exercises the power under S. 216(1) of the Code, that too, at a stage after examination of the accused under S.313 of the Code, to add a charge for an offence which the prosecution has not alleged against the accused, it is necessary that the Trial Court shall specifically indicate the materials on record which form the basis for adding a new charge. The Court must ensure that there exists convincing materials on record to add a new charge and indicate with certainty what those materials are. In the instant case, the Trial Court has not indicated with certainty as to what is the material on record which, prima facie, shows that the petitioners have committed Crl.M.C.No.6314 of 2023 **==> picture [20 x 9] intentionally omitted <==** the offence punishable under S.202 IPC. Keeping the accused in dark of those materials would cause serious prejudice to them. Annexure-A6 order is liable to be set aside for this reason. 13. This Court obtained a report from the Court below regarding the course adopted before altering the charges. The learned Magistrate reported that no separate reasoned order was passed before altering the charge. The learned Magistrate also reported that he only recorded in the proceedings paper that charge under Section 448 is altered by adding Section 452 and read over and explained the charge to the petitioners. 14. 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 added charge. Therefore, in the process, the trial Court is expected to specifically indicate the material on record which form the basis for adding a new charge. The Court must ensure that there exists convincing material on record to Crl.M.C.No.6314 of 2023 **==> picture [20 x 9] intentionally omitted <==** add a new charge and indicate with certainty what those materials are. 15. In the present case, the Court simply altered the charge under Section 448 IPC to Section 452 IPC without indicating with certainty as to the materials on record which, prima facie, show that the accused have committed those offences. 16. Resultantly, the proceedings of the Trial Court altering charge under Section 448 IPC to Section 452 IPC is set aside. However, the Trial Court is at liberty to pass fresh orders in the matter of alteration of charges . The Crl.M.C. is disposed of accordingly. Sd/- **K.BABU, JUDGE** kkj Crl.M.C.No.6314 of 2023 ..10.. ## **`APPENDIX OF CRL.MC 6314/2023`** ``` PETITIONER ANNEXURES Annexure 1TRUE COPY OF THE FINAL REPORT IN C.C.NO.161/2016 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD Annexure 2CERTIFIED COPY OF THE ORDER OF ALTERATION OF CHARGE IN C.C.NO.161/2016 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 12.07.2023 Annexure 3TRUE COPY OF THE 'B' DIARY PROCEEDINGS IN C.C.NO.161/2016 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD ```