Law and You >Procedural Laws > BNSS > Alteration of Charge (Ss. 239 and 240 BNSS)
A ‘charge’ simply means an accusation. For the purposes of trial procedures, under the Sanhita, it signifies a formal accusation in writing against a person that he committed an offence. The Sanhita however does not define charge, but according to section 2(1)(f) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a “charge” includes any head of charge when the charge contains more heads than one.
The provisions relating to the contents of a charge under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), are designed to ensure that an accused person receives clear, precise, and adequate notice of the accusation. A valid charge must identify the offence, state the essential particulars such as the time, place, person or property involved, and, where necessary, describe the manner in which the offence was allegedly committed. The BNSS also recognizes practical considerations by permitting simplified charges in certain cases, such as criminal breach of trust and dishonest misappropriation, while maintaining safeguards to protect the accused’s right to a fair trial.
There is a provision that technical defects in a charge do not, by themselves, invalidate criminal proceedings. An error or omission becomes material only when it has actually misled the accused and resulted in a failure of justice. This reflects the legislative objective of prioritizing substantive justice over procedural technicalities while preserving the accused’s constitutional right to know the precise case to be met.
The Need of Alteration of Charge:
The need for alteration of a charge lies in the dynamic nature of criminal trials. Since the complete facts often emerge only after evidence is recorded, the law permits the court to amend or add to a charge so that it accurately reflects the offence disclosed by the evidence.
The need for alteration of a charge arises because the facts and evidence emerging during a criminal trial may differ from what appeared at the stage of framing the original charge. The law, therefore, empowers the court to alter or add to a charge so that the trial reflects the true nature of the offence while ensuring fairness to both the accused and the prosecution. The principal reasons for permitting alteration of a charge are as follows:
- At the stage of framing a charge, the court relies primarily on the police report, complaint, and accompanying materials. During the trial, however, witnesses and documentary evidence may reveal facts indicating that a different offence has been committed, a more serious or less serious offence is disclosed, or an additional offence has been committed. Alteration enables the charge to correspond with the evidence actually produced before the court.
- The original charge may contain mistakes such as an incorrect statutory provision, an inaccurate description of the offence, wrong particulars regarding time or place, or omission of an essential allegation. The power to alter the charge allows the court to correct such defects without requiring a fresh trial.
- The primary objective of criminal procedure is to determine whether the accused has committed the offence disclosed by the evidence. If the original charge does not accurately reflect that offence, alteration enables the court to adjudicate the actual criminal conduct instead of being confined to an erroneous charge.
- If alteration were not permitted, an accused might be acquitted merely because the charge was imperfect, even though the evidence clearly established another offence. The provision helps prevent justice from being defeated by technical defects in the framing of the charge.
- Without the power to alter the charge, courts might have to terminate the existing trial, direct a fresh investigation, or commence a new trial on a properly framed charge. Alteration promotes judicial economy by allowing the existing trial to continue, subject to safeguards protecting the parties.
Alteration of Charge:
Court may Alter Charge (S. 239 BNSS):
According to Section 239(1) BNSS, any Court may alter or add to any charge at any time before judgment is pronounced.
The Sanita confers upon the criminal court the power to modify an existing charge or frame an additional charge whenever it becomes necessary before delivering its judgment. This provision ensures that the charge accurately reflects the facts proved during the trial and that justice is not defeated because of an error or omission in the original charge.
The words “any Court” mean that the power is available to every criminal court competent to try the offence, whether it is a Magistrate’s Court or a Court of Session. The power is not confined to a particular class of criminal courts.
An alteration may involve correcting the description of the offence, changing the statutory provision, correcting the date, place, or other particulars, modifying the nature of the allegation to conform to the evidence.
For example, the charge originally alleges voluntarily causing hurt, but the evidence shows grievous hurt. The court may alter the charge to reflect the offence disclosed by the evidence.
The court may also frame an additional charge if the evidence reveals that another offence has been committed. This power is exercised where the original charge does not fully cover the criminal conduct disclosed during the trial.
The power may be exercised by the Court before the prosecution evidence begins, during the recording of evidence, after the prosecution closes its case, after the defence evidence, or even after final arguments, provided the judgment has not yet been pronounced. Once the court pronounces its judgment, it becomes functus officio in respect of the trial and cannot alter or add to the charge.
The provision serves several important objectives. It enables the court to ensure that the charge corresponds with the evidence emerging during the trial. It prevents guilty persons from escaping liability merely because of an error in the original charge. It avoids the necessity of commencing a fresh trial solely because the charge was imperfect. It promotes substantive justice while maintaining procedural fairness.
According to Section 239(2) BNSS, every such alteration or addition shall be read and explained to the accused.
When a charge is altered or added, the altered or additional charge must be read and explained to the accused. The accused must be given a reasonable opportunity to prepare a defence against the new or altered charge.
According to Section 239(3) BNSS, if the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
According to Section 239(4) BNSS, if the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
This provisions explain the procedure to be followed after a court alters or adds a charge during a criminal trial. It authorizes the court to continue the trial without starting afresh only when the alteration does not prejudice either the accused or the prosecution. The underlying principle is that procedural changes should not delay the administration of justice unless they affect the fairness of the trial.
The court after alteration of charge shall make a practical and reasonable assessment of the probable effect of the alteration and decide whether the trial can continue immediately or whether additional procedural safeguards are necessary. This decision is left to the judicial discretion of the trial court. The court must form its opinion objectively, considering the nature of the alteration, the stage of the trial, the evidence already recorded, and the possible effect on both parties. The discretion is judicial, not arbitrary, and must be exercised fairly.
The primary concern is whether the alteration would disadvantage the accused. Prejudice may arise if the accused is taken by surprise, has prepared a defence to a different accusation, requires additional evidence, needs to recall witnesses, or would otherwise be denied a fair opportunity to defend. If the accused can still effectively defend the altered charge, there is ordinarily no prejudice.
The provision also protects the prosecution. An alteration should not unfairly impair the prosecution’s ability to present its case.
If the court concludes that no prejudice will result, the trial continues from the stage already reached. There is no need to restart the proceedings merely because the charge has been amended. The altered or additional charge is treated as though it had formed part of the case from the beginning. It prevents retrials or unnecessary adjournments where the amendment is merely formal or where both parties are already aware of the factual issues.
This provision balances two important objectives: first by avoiding unnecessary delay or repetition of proceedings when the alteration is minor and causes no prejudice and second by ensuring that neither the accused nor the prosecution is disadvantaged by a change in the charge.
According to Section 239(5) BNSS, if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
This provision deals with alteration or addition of a charge where the newly framed charge relates to an offence that cannot be prosecuted without the previous sanction of a competent authority. It ensures that the court’s power to alter a charge does not override statutory requirements mandating prior sanction.
Certain offences under Indian criminal law cannot be prosecuted unless prior sanction has been obtained from the competent authority. The purpose of requiring sanction is to protect public servants and certain other persons from frivolous or vexatious prosecutions; ensure that prosecutions affecting public administration are carefully scrutinized before being instituted; and comply with statutory safeguards enacted by the legislature.
When Sanction is Required?
The competent authority must grant the required sanction before the court proceeds further. Only after sanction is produced can the court continue the trial on the altered or added charge. This ensures that the statutory condition precedent to prosecution is fulfilled.
For example, a public servant is initially charged with an offence that does not require previous sanction. During the trial, the evidence reveals another offence for which prior sanction is mandatory. The court adds the new charge. Since no sanction exists for prosecuting that offence, the court must suspend further proceedings on that charge until the competent authority grants sanction.
When Sanction is Not Required?
The earlier sanction will suffice if it relates to the same factual transaction. The emphasis is on the identity of facts, not merely the legal description of the offence. If the competent authority has already examined the relevant facts and authorized prosecution, another sanction is unnecessary merely because the court later alters the legal characterization of the offence.
For example, A valid sanction was originally granted to prosecute a public servant on certain facts. During the trial, the court concludes that the same facts disclose a different offence requiring sanction and alters the charge accordingly. Because the earlier sanction already covered the same factual allegations, no fresh sanction is necessary. The trial may continue.
The provision respects statutory safeguards by ensuring that offences requiring previous sanction are not prosecuted without the approval mandated by law. It also avoids unnecessary duplication by dispensing with a fresh sanction where an existing sanction already authorizes prosecution on the same facts. Thus, it balances procedural efficiency with compliance with mandatory legal requirements.
Recall Of Witnesses when Charge Altered (S. 240 BNSS):
Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed—
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.
In Kantilal Chandulal Mehta v. State Of Maharashtra, AIR 1970 SC 359 case, the Supreme Court opined that the Code of Criminal Procedure gives ample power to the courts to alter or amend a charge whether by the trial court or by the appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him.
In Rocky Benediek v. State of Sikkim, 2003 CRILJ 3309 case, the Sikkim High Court opined that the object of the Section 216, CrPC (S. 239 BNSS) is to ensure a fair trial and the Court is to see as to whether alteration or addition to any charge at any time before the judgment is pronounced is called for or not and if it is called for, such alteration or addition to any charge, must be on the basis of some evidence on record.
Conclusion:
By empowering the court to alter or add to a charge at any time before the pronouncement of judgment, the BNSS enables the charge to conform to the evidence that emerges during the trial and ensures that the real offence disclosed by the facts is adjudicated.
At the same time, this power is not unfettered. The BNSS incorporates important procedural safeguards to preserve the accused’s right to a fair trial. An altered or additional charge must be read and explained to the accused, and the court must determine whether proceeding immediately would prejudice either the defence or the prosecution. Where necessary, the court may adjourn the trial or permit the recall of witnesses to eliminate any prejudice. Further, if the altered or added charge relates to an offence requiring previous sanction for prosecution, the trial cannot proceed until the requisite sanction is obtained, unless an existing sanction already covers the same factual transaction.