• Amendment of charge

After complete trial judge amended the charge section. Original charge was under section 467, 468, 471, 120B. Judge amended it to 467 468 471 read with 120B. And got signed from accused and pp that no cross examination is required. After three days anounced sentence. Can we get benefit of this aspect in appeal? Judge was already biased in thre begining of trial and we had gone to high court for change of judge. Initially matter was stayed by CJ but later petition was dismissed by another judge in HC.
Please guide
Asked 7 years ago in Criminal Law
Religion: Hindu

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5 Answers

1.I am not sure what doyou mean by 'sign by accused'.

2.No accused person can give written undertaking that no cross examination is required.

3.charge can be amended during trial also but in that event the accused person must be given a chance to put his defence or the added charge must not be of such nature that it puts the accused under surprise and without defence.

3.In your case the trial court seems to have committed great irregularity which affects the very merit of the case for which the appeal has good merit and the conviction is likely to be set aside.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

court can exercise power of addition or modification of charge under Section 216 CrPC on the basis of material before the court.

2) Hasanbhai Valibhai Qureshi wherein Supreme Court

has observed:-

“Section 228 of the Code in Chapter XVII and

Section 240 in Chapter XIX deal with framing of

the charge during trial before a Court of Session

and trial of warrant cases by Magistrates

respectively. There is a scope of alteration of the

charge during trial on the basis of materials

brought on record. Section 216 of the Code

appearing in Chapter XVII clearly stipulates that

any court may alter or add to any charge at any

time before judgment is pronounced. Whenever

such alteration or addition is made, the same is

to be read out and informed to the accused.”

10

10. In the said case, reference was made to Kantilal

Chandulal Mehta v. State of Maharashtra8

wherein it

has been ruled that Code gives ample power to the courts to

alter or amend a charge provided that the accused has not

to face a charge for a new offence or is not prejudiced either

by keeping him in the dark about the charge or in not giving

him full opportunity of meeting it and putting forward any

defence open to him on the charge finally preferred against

him. Placing reliance on the said decision, it has been

opined that if during trial the trial court on a consideration

of broad probabilities of the case based upon total effect of

the evidence and documents produced is satisfied that any

addition or alteration of the charge is necessary, it is free to

do so, and there can be no legal bar to appropriately act as

the exigencies of the case warrant or necessitate

3) in present case amendment of charge was done and accused has agreed no cross is required . you would not get benfit of this aspect in appeal

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

Jasvinder Saini (supra) and Thakur Shah v. King

Emperor10. Proceeding further, it has been ruled thus:-

“17. Section 216 CrPC gives considerable power

to the trial court, that is, even after the

completion of evidence, arguments heard and the

judgment reserved, it can alter and add to any

charge, subject to the conditions mentioned

therein. The expressions “at any time” and before

the “judgment is pronounced” would indicate that

the power is very wide and can be exercised, in

appropriate cases, in the interest of justice, but

10 (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192

15

at the same time, the courts should also see that

its orders would not cause any prejudice to the

accused.

18. Section 216 CrPC confers jurisdiction on all

courts, including the Designated Courts, to alter

or add to any charge framed earlier, at any time

before the judgment is pronounced and

sub-sections (2) to (5) prescribe the procedure

which has to be followed after that addition or

alteration. Needless to say, the courts can

exercise the power of addition or modification of

charges under Section 216 CrPC, only when

there exists some material before the court,

which has some connection or link with the

charges sought to be amended, added or

modified. In other words, alteration or addition of

a charge must be for an offence made out by the

evidence recorded during the course of trial

before the court. (See Harihar Chakravarty v.

State of W.B. (supra) Merely because the charges

are altered after conclusion of the trial, that itself

will not lead to the conclusion that it has resulted

in prejudice to the accused because sufficient

safeguards have been built in Section 216 CrPC

and other related provisions.”

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

If you are aggrieved over the judgment on any point from your side that ws not considered by the court while passing judgment, you may prefer an appeal before the appellate court.

There is nothing wrong in preferring an appeal on the grounds that you strongly feel shall be in your favor.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Documentary Evidence were not accepted during prosecution stage. For which we moved to HC. Writ was dismissed with order that evidences be addicted during defence. But in judgement all the defence evidences were not discussed. Can't defence evidences be adduced at prosecution stage??

If your defence evidences were not considered by the trial court, you may prefer the appeal on that ground too.

The appeal can contain all your grievances about the erred judgment and the injustice meted out to you.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

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