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Victim/ De-Facto Complainant Entitled To File Plea Under Section 216 CRPC For Addition Of Charge
Hon’ble Justice Asha Arora of the Calcutta High Court held that a victim/ De-facto complainant is entitled to file a plea under Section 216 of the Code of Criminal Procedure (CrPC) for addition or alteration of charge. It also stated that Section 362 of CrPC does not bar such addition of charge under Section 216 as Section 362 itself provides for such an exception. This was passed against a plea of the Additional Sessions Judge.The Additional Sessions Judge was hearing a case and had by way of an order dated April 11, 2018 framed charge against the accused/ petitioner under Section 306 of Indian Penal Code (IPC). The charge was altered on the basis of an application under Section 216 of CrPC filed by the de-facto complainant.
It was contended that, a defacto complainant has no locus standi to file an application for alteration of the charge since the power under Section 216 of CrPC vested in court is exclusive. Secondly,the de-facto complainant or the accused or the prosecution cannot seek addition or alteration of charge by filing an application as a matter of right. Thirdly, it was canvassed that the power to alter a charge is barred by Section 362 of CrPC since the order of charge has attained finality. The Court observed that Section 216 of the CrPC is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or is brought to its notice. The first contention was dismissed as the error or omission in framing the charge was brought to the notice of the trial court by the de-facto complainant and accordingly the charge was altered upon perusal of the material which was overlooked.
The provision begins by stating that an exception can be provided by the CrPC itself. Section 216 provides for such an exception. By virtue of the said provision, the Court is vested with the power to alter or add to any charge at any time before judgment is pronounced. The Hon’ble Court ruled that n view of the specific provision in CrPC under Section 216, the bar under section 362 CrPC is not applicable in the case of alteration of charge by the Court.
