LexR. RACHAIAH versus HOME SECRETARY, BANGALORE
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[2016] 3 S.C.R. 3 79 R. RACHAIAH v. HOME SECRETARY, BANGALORE (Criminal Appeal No. 2375 of2009) MAY05,2,016 [A.K. SIKRI AND R.K. AGRAWAL, JJ.] Code of Criminal Procedure, 1973: ss.216 and 217 - Alteration of charges and recalling of witnesses when charges altered - Appellant-A-I and other accused alleged to have caused death of son-in-law of A-I - Charge sheet filed against all three accused u!s.306 and s.365 rlw s.34 - Charges framed under said sections - Examination of witnesses - Thereafter, application u/s.216 filed by prosecution for framing of additional charge uls.302 - Trial court framed ""Alternative charge' uls.302 rlw s.34 - Conviction of all the three accused persons u/s.302 r/w s.34 and also u/s.364 rlw s.34, upheld by High Court - Challenged on the ground that s.302 was wrongly framed without following procedure u/ss.216 and 217 - Held: Per s.216, though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, however, if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge - The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage - Further, s.217 provides that the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition A B c D E F - In the instant case, at the fag end of the trial, the charge was altered with "Alternative Charge" with the framing of the charge ul s.302 !PC - Accused persons were initially charged for an offence G u/s.306 !PC, i.e. abetting suicide which was allegedly committed by . the son-in-law of A-1 ,- Later, the charge against the appellants was that they have commirred murder of the son-in-law of A-I - In a case like this, addition and/or substitution of such a charge was bound ta create_ prejudice to the appellants - In order· to take care of the said prejudice, it was incumbent upon the prosecution to·re- 379 H ·. 380 SUPREME COURT REPORTS [2016) 3 S.C.R. A call the witnesses, examine them in the context of the charge u/ s.302 of !PC and allow the accused persons to cross-examine those witnesses - There was no cross-examination of these witnesses insofar as charge uls.302 !PC is concerned - The trial, therefore, stood vitiated - Conviction set aside~ · B .C D E F G H ss.216, 217 - Scope of - Held: The provisions of ss.216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity - Cross- examination of the witnesses, in the process, is an important facet of this right - Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person. Allowing the appeals, the Court HELD: 1. The trial which is conducted and on the basis of which conviction is recorded under Section 302 IPC is clearly vitiated as the same is in violation of the mandatory procedure prescribed under Sections 216 and 217 of the Code. The bare ·reading. of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and 4 of Section 216 of the CQde~ Sub-section(3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it . altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position tiecomes further clear from the bare reading of sub-section(4) of Section 216 of the Code which empowers the Court, in such a
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