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Case Number

Crl. MC. No. 5428 of 2020 (G)

Attorney(S)

By Advs. Sri. K. Viswan
Smt. Anuroopa Jayadevan
Sri. D. Arun Bose
Shri. Ashruth Naser
Sri. B. Jayasurya-Sr. PP,
Sri. K. Gopalakrishna Kurup Sr. Adv.

Judges

JUSTICE NARAYANA PISHARADI R.

Acts

Sections 120B I.P.C and under Section 201 read with 120B I.P.C.12. Section 216(1) of the Code
u/s.13(1)(d) read with 13(2) of PC Act and U/s.120B, 409, 468, 471, 477A and 201 of I.P.C.
Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988
Section 202 I.P.C.
accused.13. Section 216(1) of the Code
Section 313 of the Code,
Sections 409, 468, 471, 477A, 201 and 120B of the Indian Penal Code.5.
Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'),

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Smart Summary

Structured Summary of the Opinion — Petition under Section 482 challenging Annexure-A6

Factual and Procedural Background

The petitioners are the second and the third accused in C.C. No.173/2016 pending before the Enquiry Commissioner and Special Judge, Thalassery. The first accused was employed as the Accountant in the Valapattanam Service Co-operative Bank. Accused numbers 2 to 5 held positions of Secretary, Manager, Chief Accountant and Assistant Secretary respectively. The prosecution alleges misappropriation of Rs. 2,00,000 by the first accused while he was Manager in-charge, allegedly with the assistance of the other accused.

The trial court framed charges under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and under Sections 409, 468, 471, 477A, 201 and 120B of the Indian Penal Code against the accused. After examination under Section 313 Cr.P.C. and at the stage of defence evidence, the trial court formed the view that materials produced by the prosecution showed sufficient elements to attract the offence under Section 202 IPC against accused 2 to 5 and, in the interest of justice, suo motu re-opened the case and framed an additional charge by passing Annexure-A6.

The petitioners (accused 2 and 3) filed this application under Section 482 Cr.P.C. seeking to set aside Annexure-A6. The petition was heard by the court with representations from senior counsel for the petitioners and the Public Prosecutor.

Legal Issues Presented

Whether the trial court properly exercised its power under Section 216(1) Cr.P.C. to add a charge under Section 202 IPC at the stage after examination under Section 313 Cr.P.C. and at the stage of defence evidence?
Whether there existed "sufficient material on record" with a direct link or nexus to the ingredients of Section 202 IPC to justify adding that charge against the petitioners?
Whether the trial court's Annexure-A6 order was legally adequate where it stated only that materials "show sufficient elements" but did not specify or indicate which materials on record formed the basis for adding Section 202 IPC?

Arguments of the Parties

Petitioners' (Accused 2 & 3) Arguments

There is absolutely no material on record before the trial court to add a charge under Section 202 IPC against the petitioners.
In the absence of such material, the trial court should not have exercised the power under Section 216(1) Cr.P.C.
The impugned Annexure-A6 order fails to disclose what specific materials on record attract the offence under Section 202 IPC, thereby depriving the petitioners of an opportunity to meet the basis for the new charge and causing prejudice.

Respondent / Public Prosecutor's Arguments

The trial court was satisfied that there was sufficient material to add a charge under Section 202 IPC against the petitioners.
Given the trial court's satisfaction, this Court should not invoke its inherent power under Section 482 Cr.P.C. to interfere with that finding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Central Bureau Of Investigation v. Karimullah Osan Khan, AIR 2014 SC 2234	Section 216(1) Cr.P.C. confers wide power to alter or add charges and such power can be exercised only when there exists material having connection or link with the charges sought to be amended/added.	Used to support the proposition that s.216(1) is wide and to emphasize that addition/modification requires material with a direct link to the proposed charge.
Nallapareddy Sridhar Reddy v. State of A.P, AIR 2020 SC 753	Alteration or addition may be done if omission in framing charge is apparent or if prima facie examination of material leads to a presumptive opinion that factual ingredients of the alleged offence exist; material must have direct link/nexus.	Quoted for the test that material brought on record must have a direct link or nexus with the ingredients of the alleged offence when deciding to add a charge.
Pradeepan v. State Of Kerala, 1993 (2) KLT 880	An erroneous or improper charge may be corrected under Section 216(1) Cr.P.C. by reframing, adding to, or altering it before pronouncement of judgment.	Supported the view that s.216(1) empowers the court to remedy defects in a charge at any stage prior to judgment.
Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078	If, on consideration of broad probabilities based on total effect of evidence and documents produced, the trial court is satisfied that alteration/addition is necessary, it may do so; no legal bar exists.	Used to underline that the trial court can act upon broad probabilities from the record to add or alter charges during trial.
Bhimanna v. State Of Karnataka, AIR 2012 SC 3026	If sufficient evidence on record would render the accused liable for offences other than those charged, the court can alter/add requisite charges at any stage prior to conclusion of the trial.	Supported the proposition that presence of sufficient evidence on record may justify adding charges before trial conclusion.
Anant Prakash Sinha v. State of Haryana, AIR 2016 SC 1197	The court has jurisdiction to add a charge if it has not been framed despite material on record; an informant filing an application may only bring a defect to the court's notice enabling suo motu action.	Applied to explain that while the power is court's exclusive domain, parties (informant) may draw defects to the court's notice and the court may rectify omissions.
P. Kartikalakshmi v. Sri Ganesh, (2017) 3 SCC 347	Power under Section 216(1) Cr.P.C. is exclusively vested in the court; neither complainant nor accused nor prosecution has a vested right to seek addition/alteration of charge as a matter of right.	Relied upon to emphasise exclusivity of the court's power to add/alter charges and to clarify limits on parties' rights to demand such relief.
Harihar Chakravarty v. State Of West Bengal, AIR 1954 SC 266	In a case instituted on a complaint, addition of charge can be done only if there are materials either in the complaint or in the evidence adduced to justify such action.	Used to indicate that in complaint cases the foundation for additional charges must be traceable to the complaint or evidence.
Kanti Bhadra Shah v. State of West Bengal, AIR 2000 SC 522	When a trial court initially frames a charge, there is no legal requirement to state reasons; framing itself is a prima facie order that the court formed an opinion based on police report and documents.	Distinguished initial framing (where reasons need not be spelled out) from subsequent addition under Section 216(1), which requires the court to indicate the materials forming the basis for adding a new charge.

Court's Reasoning and Analysis

The court began with the statutory text of Section 216(1) and (2) Cr.P.C., acknowledging that Section 216(1) gives the trial court broad power to alter or add charges "at any time before judgment is pronounced." The opinion surveyed authorities to identify the test and limits on that power.

Key legal propositions the court relied on (as distilled from the cited authorities) were:

Section 216(1) is wide and may be exercised in the interest of justice at any stage prior to pronouncement of judgment to remedy defects or omissions in the framing of charge.
However, the exercise of that power must be founded on materials on record; such materials must have a direct link, nexus or connection with the ingredients of the offence sought to be added.
In complaint cases or where a proposed addition is not in the original chargesheet, the court must ensure that the addition is justifiable from the complaint, FIR, documents, or the evidence brought on record.
While the court's power is exclusive (parties do not have a right to seek addition as a matter of right), parties may draw defects to the court's attention so the court can act suo motu.

Applying these principles to the present case, the court noted the specific procedural posture: the chargesheet did not allege an offence under Section 202 IPC against any accused; the trial court had earlier framed charges only under Section 120B and under Section 201 read with 120B IPC for accused 2 to 5. The trial court's Annexure-A6 re-opened the case suo motu and stated, in summary terms, that "the materials produced by the prosecution show sufficient elements to attract offence u/s.202 of IPC against A2 to A5," but did not identify or indicate the particular materials on record which formed the basis for that conclusion.

The court drew an important distinction between initial framing of charge and subsequent addition under Section 216(1). Although initial framing need not be accompanied by a detailed reasons order (framing itself is prima facie evidence of opinion formation), when a court invokes Section 216(1) after examination under Section 313 Cr.P.C. to add a charge that was not alleged by the prosecution, it is necessary for the trial court to specify the materials on record which form the basis for addition of the new charge. This is required because keeping the accused unaware of the precise materials relied upon would cause serious prejudice.

On analysis, the court concluded that Annexure-A6 failed this essential requirement: it did not indicate with certainty what materials on record prima facie showed that the petitioners had committed an offence punishable under Section 202 IPC. For that reason the order did not meet the standard established by the authorities for lawful exercise of Section 216(1).

Holding and Implications

Holding:

Annexure‑A6 order is set aside.

Implications / Consequences:

Direct effect on the parties: The trial court's order adding a charge under Section 202 IPC against accused 2 and 3 (and others A2–A5) is quashed for failure to indicate the specific materials on record that form the basis for adding that charge. The addition as effected by Annexure‑A6 cannot stand in its present form.
Further proceedings: The trial court has the liberty, if found necessary, to pass fresh orders for addition of charge against the petitioners or other accused, but must keep in mind the observations in this opinion—specifically, the requirement to identify the convincing materials on record that justify adding the charge and to ensure that the accused are not kept in the dark about the basis for the new charge.
Precedential effect: The opinion does not announce any novel legal principle beyond the settled tests summarized from earlier cases; it applies existing authorities to the facts and thus does not purport to establish a new precedent beyond reinforcing the requirement that additions under Section 216(1) must be founded on identifiable materials on record.

This summary is limited to and strictly based on the contents of the provided opinion and does not introduce information beyond that text.

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N.P. Hamza v. State Of Kerala

1. The petitioners are the second and the third accused in the case C.C.No.173/2016 pending in the Court of the Enquiry Commissioner and Special Judge, Thalassery.

2. The first accused was employed as the Accountant in the Valapattanam Service Co-operative Bank. Accused 2 to 5 were the Secretary, Manager, Chief Accountant and the Assistant Secretary of the Bank respectively.

3. It is not necessary here to narrate the prosecution case in detail. Suffice it to state that the case relates to misappropriation of an amount of Rs.2,00,000/- allegedly committed by the first accused while he was working as the Manager in-charge of the Bank with the assistance of the other accused in the case.

4. The trial court framed charge against the accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 409, 468, 471, 477A, 201 and 120B of the Indian Penal Code.

5. After examination of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the trial of the case reached the stage of defence evidence. The trial court then found that the materials produced by the prosecution showed sufficient elements to attract the offence punishable under Section 202 I.P.C against accused 2 to 5 and therefore, in the interest of justice, it was necessary to frame additional charge against them for that offence. Accordingly, the trial court passed Annexure-A6 order to that effect.

6. The petitioners, who are the second and the third accused in the case, have filed this application under Section 482 of the Code to set aside Annexure-A6 order.

7. Heard Sri.K.Gopalakrishna Kurup, learned senior counsel who appeared for the petitioners and also the learned Public Prosecutor.

8. Learned senior counsel contended that there is absolutely no material on record before the trial court to add a charge against the petitioners for an offence under Section 202 I.P.C. Learned senior counsel would contend that, in the absence of any such material, the trial court should not have exercised the power under Section 216(1) of the Code. Learned senior counsel further contended that the impugned order does not disclose what are the materials on record which attract the offence punishable under Section 202 I.P.C against the petitioners.

9. Per contra, the learned Public Prosecutor submitted that the trial court was satisfied that there was sufficient material to add a charge for the offence under Section 202 I.P.C against the petitioners and therefore, this Court cannot invoke the power under Section 482 of the Code to interfere with that finding.

10. The relevant portion of Annexure-A6 order reads as follows:

“Here in this case the prosecution allegation against A2 to A5 is that they have purposefully delayed reporting the offence of alleged criminal misappropriation of Rs.2,00,000/- committed by A1 from Manna Branch of the Valapattanam Service Co-operative Bank. A2 is the Secretary, A3 is the Manager, A4 is the Chief Accountant and A5 is the Assistant Secretary of the Valapattanam Service Co-operative Bank during the relevant period of this case. The charge framed by my predecessor against the accused persons for offences u/s.13(1)(d) read with 13(2) of PC Act and U/s.120B, 409, 468, 471, 477A and 201 of I.P.C. The materials produced by the prosecution show sufficient elements to attract offence u/s.202 of IPC against A2 to A5. So for the interest of justice it is necessary to frame additional charge for offence U/s.202 of IPC against A2 to A5 in addition to the charge already framed against them. Therefore the case is suo-motu re-opened for framing additional charge against A2 to A5 and they are directed to appear on 06.10.2020 to read the charge.”

11. It is pertinent here to note that, in the chargesheet filed by the investigating officer, no offence under Section 202 I.P.C is alleged against any of the accused. As far as accused 2 to 5 are concerned, the trial court had framed charge against them only for the offences punishable under Sections 120B I.P.C and under Section 201 read with 120B I.P.C.

12. Section 216(1) of the Code provides that, any Court may alter or add to any charge at any time before judgment is pronounced. Section 216(2) of the Code states that, every such alteration or addition shall be read and explained to the accused.

13. Section 216(1) of the Code gives considerable powers to the trial court to alter and add any charge. It can be done even after the completion of evidence, hearing the arguments and reserving the judgment. The expressions "at any time" and before the "judgment is pronounced" would indicate that the power is very wide and it can be exercised, in the interest of justice, in appropriate cases (See Central Bureau Of Investigation v. Karimullah Osan Khan . : AIR 2014 SC 2234 and Nallapareddy Sridhar Reddy v. State of A.P : AIR 2020 SC 753).

14. The power of the court to alter or add to any charge is uninhibited and untrammelled by any time or stage of the trial. The legislative intention is evidently to invest the court with all comprehensive power for remedying the defects in a charge whether they arose while framing the charge or due to non-framing of charge, whether the defects were discovered at the inception of the trial or at any subsequent stage of it. An erroneous and improper charge may be corrected under Section 216(1) of the Code by reframing it properly or by adding to it or altering it, at any time, prior to pronouncement of the judgment (See Pradeepan v. State Of Kerala : 1993 (2) KLT 880).

15. During the trial, if 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 (Hasanbhai Valibhai Qureshi v. State of Gujarat : AIR 2004 SC 2078). If the trial Court is of the view that there is sufficient evidence on record against the accused which would make them liable for conviction and punishment for offences, other than those offences for which charge is framed, the court can alter/add the requisite charges, at any stage prior to the conclusion of the trial (Bhimanna v. State Of Karnataka . : AIR 2012 SC 3026).

16. The court can change or alter the charge if there is defect or something is left out. It can be done at any time before pronouncement of judgment. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge (Anant Prakash Sinha v. State of Haryana : AIR 2016 SC 1197).

17. In P.Kartikalakshmi v Sri Ganesh : (2017) 3 SCC 347, it has been held that the power vested under Section 216(1) of the Code is exclusive to the Court and there is no right in any party to seek for addition or alteration of charge by filing any application as a matter of right. It was held that Section 216(1) of the Code is an enabling provision for the Court to exercise its power under certain contingencies which come to its notice or brought to its notice. It was made clear in this decision that, neither the de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge.

18. However, in Anant Prakash Sinha (supra), it had been held that there was no fault on the part of the trial court in entertaining the application filed by the informant seeking addition of charge. It was held that the informant had, in a way, only brought to the notice of the trial court the defect in framing of the charge which could have been rectified by the court suo motu.

19. There is no real conflict between Kartikalakshmi (supra) and Anant Prakash Sinha (supra). Kartikalakshmi (supra) only holds that neither the de facto complainant nor the accused or the prosecution has any vested right to seek any addition or alteration of charge and that the power under Section 216(1) of the Code is exclusively confined to the Court. But, Anant Prakash Sinha (supra) makes it clear that, by filing an application seeking addition or alteration of charge, the informant only brings to the notice of the trial court the defect in framing the charge to enable the court to rectify it.

20. What is the test to be applied in deciding whether any alteration or addition of charge is necessary? Anant Prakash Sinha (supra) holds that, the test is, alteration or addition of charge must have foundation on the material available on record. It can be on the basis of the complaint or the first information report or accompanying documents or the material brought on record during the course of the trial or evidence adduced during the course of the trial. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered.

21. In a case instituted on a complaint, addition of charge could be done only if there are materials either in the complaint or in the evidence adduced to justify such action (See Harihar Chakravarty v. State Of West Bengal . of W.B : AIR 1954 SC 266).

22. The court can exercise the power of addition or modification of charges 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 (See Central Bureau Of Investigation v. Karimullah Osan Khan . : AIR 2014 SC 2234).

23. In Nallapareddy Sridhar Reddy (supra), it has been held as follows:

“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”.

24. An analysis of the decisions referred to above leads to the conclusion that the test to be applied in exercising the power under Section 216(1) of the Code to add a charge is the existence of sufficient materials on record which have direct link, nexus or connection with the ingredients of the offence.

25. In the instant case, the grievance of the petitioners is that the impugned order does not disclose what are the materials on record which have got a direct nexus or link with the ingredients of the offence punishable under Section 202 I.P.C which is proposed to be added against them.

26. In the impugned order, the trial court has only stated that “the materials produced by the prosecution show sufficient elements to attract offence under Section 202 I.P.C against A2 to 5.” The trial court has not indicated what are the materials on record which contain sufficient elements attracting the offence under Section 202 I.P.C against the petitioners.

27. Normally, when the trial court initially decides to frame charge against the accused, there is no legal requirement that it shall pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial court has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned (See Kanti Bhadra Shah v. State of West Bengal : AIR 2000 SC 522).

28. However, when the trial court exercises the power under Section 216(1) of the Code, that too, at a stage after examination of the accused under Section 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 the offence punishable under Section 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.

29. Consequently, the petition is allowed and Annexure- A6 order is set aside. If found necessary, the trial court is at liberty to pass fresh orders for addition of charge against the petitioners or other accused, keeping in mind the observations made in this order in the previous paragraph.

N.P. Hamza v. State Of Kerala

Structured Summary of the Opinion — Petition under Section 482 challenging Annexure-A6

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (Accused 2 & 3) Arguments

Respondent / Public Prosecutor's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

N.P. Hamza v. State Of Kerala

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