If the addition or alteration to a charge is such that, in the opinion of the Court, proceeding immediately with the trial is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, proceed with the trial as if the altered or added charge had been the original charge. If, on the other hand, such alteration or addition is likely to prejudice the accused or the prosecutor, the Court may adjourn the trial or it may direct a fresh trial.
If the offence stated in the altered or added charge is one for the prosecution of which the previous sanction of any authority is required the case cannot be proceeded with until such sanction has been obtained, unless such sanction has already been obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Moreover, whenever a charge is altered or added to by the Court after the trial has commenced, the prosecutor and the accused are to be allowed—
(a) To recall or re-summon any witness who has already been examined, and examine such witness with reference to the altered or added charge, unless the Court considers (for reasons to be recorded by it in writing) that such recall or re-examination of a witness is merely for the purpose of vexation or delaying or defeating the ends of justice; and
(b) To call any further witnesses who are material witnesses in the opinion of the Court.
In Thakur Shah’s case (A.I.R. 1943 P.C. 192), the Privy Council observed as follows: ‘The alteration or addition in any charges is always, of course, subject to the limitation that no course should be taken, by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it, and putting forward any defence open to him on the charge finally preferred.”
The observations of the Supreme Court in Kantilal’s case (A.I.R. 1970 S.C. 359) are equally instructive. In that case, the Court observed: “The Criminal Procedure Code gives ample power to the Court to alter or amend a charge, provided that the accused has not to face a charge for new offence, or is not prejudiced, either by keeping him in the dark about the charge, or in not giving him a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him.”
Thus, when a Magistrate summoned the accused under a particular section of the I.P.C., but the evidence disclosed an offence under another section, it was held that the Court could amend the charge. (Biroo,—25, Cr. L.J. 302)
However, it is to be remembered that the Court, in substituting one charge for another, cannot ignore the basic requisites of a charge. Thus, a charge for rape cannot be altered into a charge for adultery, because the complaint of the husband is a preliminary requisite for adultery.
Further, although S. 216 gives power to the Court to add or to alter the charge, yet, this power is to be exercised with great discretion, and it is the duty of the Court to ensure that the accused is not prejudiced by the addition or alteration of the charges. Where it was found, at the conclusion of the trial, that the charges, as framed, did not disclose any offence, it was held that it would be illegal and prejudicial to the accused to alter or amend the charges and to convict him on the amended charges, without giving him an opportunity to meet the amended charges. (Mathu,—21 Cr. L.J. 57)