Can prosecution or accused apply for alteration of charge in criminal appeal?

 Power to Alter Charges: Exclusive Judicial Prerogative

The power to alter charges under Section 216 of the Criminal Procedure Code (CrPC) lies exclusively with the court and cannot be invoked through an application by either the prosecution or the accused. This principle applies equally to both trial courts and appellate courts.

No Right to Apply for Charge Alteration

Neither party can seek alteration as a matter of right. The Supreme Court has clearly established that there is no right in any party to seek addition or alteration of charges by filing any application as a matter of right. The Kerala High Court reinforced this principle, noting that while a prosecution's application for charge alteration could not be entertained, the trial court retained discretion to independently alter or add charges if deemed necessary based on evidence presented.

Appellate Court's Power and Limitations

Appellate courts can exercise the power to alter charges under Section 216 CrPC, read with the wide powers conferred by Section 386 of CrPC. However, there are important procedural safeguards:

• Notice requirement: If an appellate court intends to alter charges, elementary principles of natural justice require the appellate court to put the accused on notice

• Reasons must be recorded: When charges are altered, reasons for the alteration must be recorded in the judgment

• Opportunity for defense: Both prosecution and defense must be given opportunity under Section 217 of CrPC to recall or re-examine witnesses in reference to altered charges

Court's Suo Motu Power

The court's power to alter charges is an enabling provision that allows courts to exercise this authority under certain contingencies that come to their notice. If there was an omission in framing charges and it comes to the court's knowledge, the power is always vested in the court to either alter or add charges at any time before judgment is pronounced.

Key Restrictions

The alteration must be:

• Based on evidence on record: Charges can only be altered based on materials already on record or evidence brought during trial

• Without prejudice: The alteration should not prejudice the accused in defense or the prosecutor in conduct of the case

• Properly explained: Every alteration must be read and explained to the accused

In summary, while neither the prosecution nor accused can apply for charge alteration as a matter of right, appellate courts retain the discretionary power to alter charges on their own, provided they follow due process including giving proper notice to the accused and recording reasons for such alteration.

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