Bombay High Court’s Ruling Regarding The Imposition Of An Additional Charge Under The Code Of Criminal Procedure, 1973 Following An Application By The Prosecution

INTRODUCTION

The Bombay High Court in the case of Nikhil Patt and Ors. vs. Central Bureau of Investigation and Anr.[1] has held that even if an application for alteration of charge[2] is filed by the prosecution, the court can consider the same, as information being brought to its notice about the defect in framing of the charge, and thereafter the court can invoke its powers to Section 216 of the Code of Criminal Procedure, 1973 (“CRPC”) to frame additional charge or alter the charge.

FACTS

The Petitioners were accused of offences under Sections 120 B, read with Sections 406, 409, 420, 465, 467, 468 and 471, of the Indian Penal Code, 1860 (“IPC”) as well as Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“PC Act”) in relation to certain forged letter of credits submitted to Bank of India. It was alleged that these letters of credit were purportedly issued by Vijaya Bank.

The complaint was filed on 29 January 2013 and the trial was ongoing for more than 10 years. On completion of the investigation, a chargesheet was filed on 23 November 2013[3]. On 5 April 2016, the trial court framed charges against the accused persons, including the petitioners under Sections 120-B read with Sections 420, 468 and 471 of the IPC as well as Sections 13(1)(d) and 13(2) of the PC Act. Thus, as on the date of framing of the charges, the offence under section 467 was not added to the chargesheet.

Thereafter on 7 February 2023, the Central Bureau of Investigation (“CBI”) filed an application under Section 216 of the CRPC seeking alteration of the charges which were levelled against the accused and for addition of the charges under section 120-B read with Section 467 of the IPC. The trial court allowed the application and passed an order for adding of the charges. Section 467 is an aggravated section which deals with forgery of valuable securities. While forgery for the purpose of cheating is punishable under Section 468 which prescribes imprisonment up to 7 years, Section 467 of IPC is an aggravated offence and provides the punishment for forging a valuable security, making it punishable with imprisonment for life.

The order passed by the trial court permitting addition of the charge was challenged by the accused before the Bombay High Court. The argument of the accused persons was that the charges cannot be added or altered on the basis of an application filed by the prosecution and hence the order passed by the trial court was incorrect. The accused also stated that adding of the charge prejudiced their rights since a harsher section of the law had been imposed. The accused relied on the dictum laid down by the Supreme Court of India in the case of P. Kartikalakshmi vs. Sri Ganesh and [4]Anr. And Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh and Ors[1] in support of their submissions.

The Bombay High Court while considering the judgements of the Supreme Court, summarised the principles therein by observing that a charge could be altered or added by the court if in the opinion of the court, there was an omission in the framing of the charge, or if upon a prima facie examination of the material available on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients, constituting the alleged offence.

The question, however, before the court was that whether the power under Section 216 could be exercised by the court on the basis of an application which was filed by the prosecutorial agency?

COURT’S RULING

The Bombay High Court held that though the power to invoke the provisions of Section 216, as an enabling provision for the purposes of alteration or addition of the charge, is exclusively confined with the court, the trial court can however consider the application of the prosecution, as information being brought to its notice about the defect in the framing of the charges. Thus, the court in such circumstances can exercise of powers under Section 216 of the CRPC for the addition of the charge. Such a course, according to the Bombay High Court would be in conformity with the scope of the court’s powers under Section 216 of the CRPC.

CONCLUSION

While this judgement appears to be a nuanced reasoning of the provisions contained in Section 216 of the CRPC, however, it exposes accused persons to the chance of additional charges/alteration of charges being framed in criminal trials even if such applications are filed belatedly by the prosecution agencies. The provisions of Section 216 permit the court to alter and add the charges right till the pronouncement of the judgment. Of course, it is going to be a matter of fact whether the evidence gathered and presented to the court has the necessary ingredients, basis which the additional charge/alteration of charge can be sustained.

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[1] Order dated 27 February 2024 in Criminal Writ Petition No. 709 of 2023.
[2] Charge is accusation made against person in respect of the offence alleged to have been committed by him. However the definition under Section 2(c) of CRPC is an inclusive definition and states that “unless the context otherwise requires “charge” includes any head of charge when the charge contains more heads than one”.
[3] The judgment mentions this date as ‘23 November 2023’, however from the facts stated in the judgment, it appears that this is a typo and the date should have been ‘23 November 2013’.
[4] (2017) 3 SCC 347

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