Section 217 CrPC | When Court Alters Charges, Opportunity Must Be Given To Both Sides To Recall/Re-examine Witnesses: Supreme Court

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

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The Supreme Court held that in the event of an alteration of charges, an opportunity must be provided to the parties to recall or re-examine witnesses in reference to such altered charges, and the reasons for the alteration of charges must be recorded in the judgment. “A Court may alter or add to any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the Cr.P.C., both to the Prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges. More importantly, in case, charges are altered by the Court, reasons for the same must be recorded in the judgment.”, the bench comprising Justices Hrishikesh Roy and Satish Chandra Sharma said.

The Court overturned the accused conviction to acquittal based on two legal infirmities i.e., the altered charges under Section 302 read with Section 34 of IPC were not read out and explained to the accused, and, no evidence was led by the prosecution to show that there exists a 'common intention' on the part of the accused while doing a crime.

Initially, a charge under Section 302 read with Section 149 (Common Object) of the Indian Penal Code (IPC) was framed against the accused, however, subsequently, the charge under Section 302 read with Section 34 (Common Intention) of the IPC was framed against the accused. The alteration of charge was not read out and explained to the accused, moreover, the reasons for an alteration of charge were not recorded in the judgment.

Drawing reference from the case of Rohtas v. State of Haryana, the Court observed that when a charge is altered from 'common object' to 'common intention' then the existence of common intention in a given case must necessarily be established by the Prosecution with relevant evidence as the 'common object' and 'common intention' cannot be equated with each other.

“The Court also has the responsibility to analyze and assess the evidence before convicting a person with the aid of Section 34 of the IPC. Importantly, a mere common intention per se may not attract Section 34 IPC without action in furtherance of such common intention.”, the court observed.

“Unfortunately, the common intention of the appellants was never established by the prosecution to connect them with the crime charged. Moreover, there was no discussion by the Court on the aspect of common intention.”, the court added.

Accordingly, the Court gave the benefit of the doubt to the accused, and therefore, reversed their conviction to acquittal.