Case Note & Summary
The matter arose from a criminal petition under Section 482 Cr.P.C. and a writ petition under Articles 226 and 227 of the Constitution, challenging an order dated 28-06-2024 passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru, in Special C.C.No.565/2021. The petitioners were accused in a murder case initially investigated by the Sub-Urban Police Station, Dharwad, and later transferred to the Central Bureau of Investigation (CBI) for further investigation. The original complaint was lodged on 15-06-2016 by Smt. Mallavva Goudar regarding the murder of her husband, Yogesh Goudar, a Zilla Panchayat member. The local police filed a charge sheet against six accused on 09-09-2016 for offences under Sections 143, 147, 148, 120B, 302, 201 read with Section 149 of the IPC. The trial commenced in S.C.No.50/2017, and 63 witnesses were examined over two years. After the matter was entrusted to the CBI on 06-09-2019, the CBI registered a fresh FIR and filed three supplementary charge sheets, arraigning a total of 21 accused, including a former Minister. The trial court, noting the variance between the original charge sheet and the CBI charge sheets, invoked Section 216 Cr.P.C. and passed an order directing a re-trial under Section 216(4), granting liberty to the prosecution to examine witnesses under Sections 230 and 231 Cr.P.C. The petitioners contended that such an order was without jurisdiction, as Section 216(4) only permits examination of witnesses concerning the altered or added charge and does not authorize a de novo trial or effacement of evidence already recorded. They relied on several Supreme Court judgments to argue that the power to order re-trial lies exclusively with the appellate court under Section 386 Cr.P.C. The High Court found substance in these submissions and held that Section 216(4) Cr.P.C. does not empower the trial court to order a re-trial or a fresh trial; it merely allows the court to proceed from the stage of alteration and, if necessary, to recall or re-summon witnesses for the altered charge. The court concluded that the impugned order exceeded the jurisdiction of the trial court and quashed it. The High Court directed the trial court to continue the trial in accordance with the interpretation of Section 216(4) Cr.P.C. and allowed the petitions.
Headnote
A) Criminal Law - Alteration of Charge - Section 216(4), Code of Criminal Procedure, 1973 - Scope and Nature - The power under Section 216(4) Cr.P.C. is limited to alteration or addition of charges; it does not empower the trial court to order a re-trial or a de novo trial; re-trial can only be ordered by the appellate court under Section 386 Cr.P.C. - The phrase ‘in regard to such altered or added charge’ in Section 216(4) means that the court may call further witnesses or direct re-examination only for the altered or added charge, not for all charges. (Paras 5-6) B) Criminal Law - Re-trial - Distinction from Alteration - Sections 216, 386, Cr.P.C. - Re-trial amounts to effacing entire evidence already recorded, which is not contemplated under Section 216; only appellate court has such power. - The trial court’s direction to conduct trial afresh under Sections 230 and 231 Cr.P.C. effectively amounted to a re-trial, which is impermissible. Held, order quashed; trial to proceed from the stage of alteration, with liberty to recall/re-summon witnesses only if necessary for the altered charge. (Paras 5-6) C) Criminal Law - Scope of Section 216(4) - Powers of Court - Section 216(4) empowers the court to proceed with the trial from the stage of alteration, not reversion to prior stages; the court may recall, re-summon, or examine any witness already examined if the alteration makes it necessary; it cannot efface evidence already recorded. - The trial court misdirected itself by ordering examination of witnesses under Sections 230 and 231 Cr.P.C. as if it were a fresh trial. (Paras 5-6)
Issue of Consideration
Whether the trial court's order under Section 216(4) Cr.P.C. directing re-trial and permitting prosecution to examine witnesses under Sections 230 and 231 Cr.P.C. is valid; whether the power under Section 216(4) includes ordering a re-trial or de novo trial; whether evidence already recorded can be effaced.
Final Decision
The High Court allowed the petitions, quashed the order dated 28-06-2024, and directed the trial court to proceed with the trial from the stage of alteration of charge, with liberty to recall or re-summon witnesses only if necessary for the altered charge, following the law under Section 216(4) Cr.P.C.
Law Points
- Section 216 Cr.P.C. - Alteration of charge - power limited to alteration or addition of charge - does not include power to order re-trial or de novo trial - re-trial only by appellate court under Section 386 Cr.P.C.
- Section 216(4) permits calling further witnesses only for altered charge - cannot revert trial to pre-charge stages
- evidence already recorded stands unless affected by alteration
- Sections 230 and 231 Cr.P.C. not applicable after evidence concluded
- court to only recall or re-summon witnesses if alteration affects evidence
- re-trial effaces entire evidence - impermissible under 216
